LA318 - Comparative Legal Systems - Topic 5 - Civil Legal Systems: history, sources and structures

CONTENTS

Introduction

History

Sources of Law

Structure of the Courts

The Judiciary

Lawyers

References

Exercises

Civil legal systems are derived from and influenced by Roman Law, particularly the Roman law of the late Roman Empire which was revived in Europe after the Dark Ages. This influence extends to the sources of law and the structure of the legal system as well as some of the institutional concepts.

French law belongs to the Civil Law family legal system which includes much of continental Europe and Latin America. Within the Civil Law family there are many national differences between legal rules, legal procedures and legal institutions. Nevertheless there are similarities particularly in “legal tradition”. This tradition influences the way in which law is view, its role and place in society, the way it is organized and applied, the operation of the legal system and even the way in which law is taught. The Civil Law tradition sees law from a certain cultural perspective shaped by history and politics.

The history of present French law stems from the Revolution of 1789, the overthrow of the monarchy and the rule of Napoleon. However some of the features of pre-revolutionary France continued to have influence, for example the existence of differing customary law and varying degrees of reception of Roman law.

Although France had been part of the Roman Empire (Gaul) the breakdown of the empire, together with the fact that many customary systems of law had remained, meant that people were increasingly governed by their personal law, i.e. the law of their people or tribe.

Gradually the laws applicable to different people became localized and determined by political factors such as the strength and extent of local rulers’ control and the social structures imposed by these rulers. Most of France was feudal, but the feudal system and its sources or authority varied from area to area. In the north of France the Germanic influence was strong, whereas in the south the Roman influence, first from the Empire and then from the various Barbarian tribes which conquered the south, remained pre-dominant. Royal enactments and church law applied throughout the country, and as the monarchy became stronger so too did the extent and influence of royal decrees and the centralization of legal power. From 1494 to 1789 France was ruled by an absolute monarch who could issue ordonnances governing the whole country. Codification of certain areas of law also took place for example the codification of the local laws of the Paris region were collected together as the Coutume de Paris in the 1700s, and a Mercantile Code in 1673.

The end of the monarchy in 1789 saw marked changes in the legal system of France. The Revolutionaries included lawyers and philosophers such as Danton and Robespierre and the aim of the revolution was not only to overthrow the social system of France but also to change its political and legal structure. The Declaration of the Rights of Man was a cornerstone to this change. All men (and women) were to be equal before the law. The class-based justice system founded in feudal structures had to go. The power of the church over some matters through ecclesiastical law, had to be abolished, so that marriage and divorce could be secularized. A system of courts based on the local parlements or political units had to go, so that the separation of powers was achieved. The intermediate period between 1789 and 1801 was fairly chaotic and many attempts to change the laws were made which failed. However when Napoleon came to power, first as consul and then later as Emperor, he set up a law commission or the four best lawyers of the time – Portalis, Maleville, Bigot-Prémaneau and Tronchet – to write the first of the codes, the Code Civil.

Written law is the primary source of law and includes the Constitution, the Codes of law and Loi – Acts of Parliament and regulations – and international treaties, including the Directives of the European Union.

The present Constitution of France, which is written, dates from 1958, and incorporated the much earlier Declaration of the rights of Man and the Citizen of 1789, which marked the turning point in French legal history. The present constitution is that of the Fifth Republic.

The constitution is the supreme law of France and the Constitution can only be changed according to strict procedures. The Constitution is the highest source of law together with law amending the Constitution. Next come International Treaties, then statutes of parliament – which are divided further into a small hierarchy of their own. Included in written law are the codes of law.

A shared feature of Civil Law systems is the use of Codes, the rejection of the doctrine of precedent, the collegiality of judges and the importance of doctrine – or academic comment on the law.

Codification of the law under the Napoleonic Codes applied to the whole country and therefore unified the law even where previously there might have been different local customs. It provided what is referred to still as a ius commune which was a common body of law located in one central source. The Code Civil was a complete and systematic statement of the law governing the relations between individuals. Since its drafting it has of course been supplemented by amendments, legislation and other Codes. Although the Civil Code only applied to private law, other codes quickly followed and there were five Napoleonic Codes, although the term is only used to refer to the Civil Code. The significance was that the codes were written law and so the primary source of law was not – as in England, case law or the law of the courts – but books of law which were complete in themselves and needed only to be interpreted – a job for academics and universities. Moreover the French codes were written in such a way that they were deemed to provide legal principles which would be valid to any case at any time and could be understood by ordinary people. Codification has remained a feature of French law, and from time to time new or amended codes appear.

In French law, written law – which consists of the Codes and legislation – is the primary source of law. This means that the approach to law is different from English Common Law. Because the written law must keep up with changes in society a liberal or creative interpretation is used

In France international treaties to which France is a signatory become effective and part of the laws of France without further legislation. This is a “monist” approach. These treaties take precedence over national legislation – compared to say England where there is a “dualist” approach and international treaties only take effect once there is an act of incorporation. Importantly in France as in other European Union countries, directives, regulations and decisions of the EEC take precedence over national legislation as well, where they confer rights on individual EU citizens and are pleaded before national courts.

Legislation includes acts of Parliament and regulations passed by the Executive. Ordinary laws often supplement the codes or gradually replace parts or all of the old codes, for example a new Criminal Code was passed in 1992, and new codes for Labour Law and Agricultural Law have come into being. Some laws are fundamental to the Constitution and are called lois organiques.

The Constitution stipulates the powers of parliament to make laws and also the areas of subject matter which falls to Parliament. Other forms of legislation which are found are décrets, règlements autonomes, ordonnances, and règlements. The first two are essentially administrative measures subject to judicial review.

Ordonnances are a form of delegated legislation but they have the same status as other legislation – lois, but are used by the Government, with the authorization of Parliament, to put certain programmes into effect. They depend on an enabling law and can only be passed for a limited and a specified period. These ordonanances have to be ratified by Parliament and are subject to approval of the Conseil d’Etat.

This is also a primary source of law and was particularly important in the early days of the codes. Today however it remains important with custom or customary usage being used as an interpretative tool and to enlarge the law. Customs may be those which preceded written law and therefore throw some light on its drafting or the intention behind the law; custom which exists alongside written law and so can be used to elaborate on its provisions; or custom which is in conflict with law. In this latter case if custom is to prevail then clever argument has to be used to avoid the written law and diminish its status as an authoritative statement of the applicable law.

Whereas English Common Law views legislation as an intruder into case law, in French law case law is far less important. Historically the decisions of the courts prior to the French Revolution – which overthrew the monarchy and from which Napoleon rose to power – had exercised legal powers but not given reasons for their decisions. Consequently the power of the courts was severely curtailed under the new legal regime and to this day judges may not make general rules when deciding cases. Indeed Article 5 of the Civil Code states that judges are forbidden to make pronouncements of a general or normative kind in the cases brought to them. Generally judgments are much shorter than those found in English law. The names of judges are not given, and although the decision must be motivated, the actual argument is not set out and analysed. There are no dissenting opinions reported. The idea that in interpreting judges make the law was strongly resisted in France until late in the nineteenth century, because of the belief that the State (and therefore in a democracy, the people) made the law. This attitude also upholds and reflects the idea of the separation of powers. It is for the legislative body to make laws not the judiciary. Nevertheless case law has elaborated the law especially where the provisions of the code are very limited, for example in the law of torts there are only five articles in the code.

Case law is still not seen as a primary source of law however but rather an authorative, or secondary source. Courts do not have to follow previous decisions – there is no rule of precedent, for example – although they may in fact do so. Indeed courts are not bound to follow their own decisions, even if they are appeal courts – although they may do so. The minstère public in coming to his conclusions or the rapporteur, is likely to refer to decided cases, and where a Note is added to a law report there may be some discussion of how this case either follows or departs from other cases. However the starting point of the decision will always be written law. Generally lower courts will follow the decisions of the Court de Cassation if the case law is well-established. This requires more than one decision relating to judgments which establish or follow a principle rather than just facts.

Confusingly for those used to the Common law system, case law is referred to as la jurisprudence.

Historically doctrine or writing about the law was very important. The universities played a key role in the re-discovery of Roman Law after the Dark Ages and in its elaboration for application to the circumstances of the time. In France in particular the school of the Commentators was important. These were people who not only “glossed” the works of Justinian but explained how these Roman provisions could be applied to more modern problems. In civil law Europe the debates of jurists took place in the universities rather than in the courts – as happened in England. Leading commentators in the 16th and 17th centuries were writers such as Dumoulin, Loysel, and Pothier, whose works are still referred to today. Systematic exposition of the law has also been done by academics, especially through the production of student manuals or treatise. In practice lawyers seeking solutions to problems will refer to annotated codes and encyclopedias of law. The “Note”, written and attached to decisions of the courts may also be written by an academic as a comment on the case. Far rarer in France, than in the common law, are specialized text books on limited subjects, such as the sale of goods or consumer contracts. Students of law rely on compilations of lectures printed in manuals and annotated codes

Courts are very localized, rather than centralized. There are a large number of minor courts at the lowest level which have limited jurisdiction (tribunaux d’instance). These are courts of first instance. Above these are local courts of unlimited jurisdiction which are also courts of first instance in cases where the matter exceeds the jurisdiction of the very lowest courts (tribunaux de grande instance).

Appeal from these courts goes to a limited number of Appeal Courts determined by administrative boundaries – (Cour d’Appel). Courts of Appeal have a number of different divisions to deal with different matters. Courts of Appeal can re-examine the whole case, looking at facts and law. The process before French courts is based largely on written documents and is investigatory rather than adversarial. The only court which has national jurisdiction is the Cour de Cassation which has both civil and criminal jurisdiction. This court is an appeal court but only for matters of procedure. It will hear cases on the basis that there had been an error in the decision of the court below (it judges the judgment). It does not decide cases but quashes the decision and sends the case back, to another court, to be re-heard. If this second court still arrives at the same view there is a further appeal to the full court of the Cour de Cassation which is called the Assemblée plénière. This hears the cases and can make a final decision. The role of this court is to ensure a uniform interpretation of the law. This means that the Cour de Cassation is very busy and hears many more cases than say the House of Lords. It is also very large in terms of the number of judges who sit on it. There are five civil chambers and one criminal chamber.

In France it should be noted that quite different courts exist for civil and administrative matters, commercial and criminal matters.

Separation of powers is extremely important in France and has a strong historical foundation dating back to 1790 when a law was passed which stated quite clearly: Judicial functions are distinct and will always remain separated from administrative functions. (Article 13, Title 11 Act of 16 August 1790)

The judiciary (magistrature) is a career judiciary and judges are irremovable. A person will decide on a judicial career while still quite young and go from university to a special training college for judges provided he or she passes the competitive entrance examination. Alternatively he or she may already be a civil servant – this is particularly the route for judges going to the administrative courts. On successful completion of the course and in examinations they are appointed to their first post, hoping to rise in their careers to the highest court. Only a very small percentage of judges enter from practice.

The judiciary is divided into those who sit on the bench and the ministère public – which does not exist in common law – whose job is to present to the court any public interest issues raised by a case. He or she stands before the court and presents the interests of the state in the correct functioning of the legal system. He can indicate to the court how he thinks the case should be decided. Like the rapporteur he is not anonymous. Judges may alternate between each of these roles. In criminal cases the ministère public acts for the prosecution.

Judges sit and act collegially. Except as above, they are anonymous, even when they reach the highest court. There are no dissenting opinions given and only one judgment is given. Occasionally a judge may add a note to the report indicating a particular view. When a case is first considered by a court it is presented by a rapporteur who makes a report. This is the nearest that French law gets to an English style judgment and is not a judgment but a presentation of the law, the arguments raised and any policy issues. The identity of the rapporteur is an exception to the principle of anonymity.

There have been a number of reforms to the legal profession in the latter part of last century. The main categories today are avocats, avoués d’appel and notaires. The former appear before first instance courts and gives assistance and advice to clients outside the court. While others may give legal advice outside the court – such as notaires – only avocats can plead in court. In the higher courts only avoués d’appel have a right of appearance. Notaires are a separate profession and deal with many non-contentious matters, for example conveyancing, wills, the authentication of documents, civil status and marriage contracts.

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