By Souradeep Mukhpadhyaya
BRIEF HISTORY OF FRENCH LEGAL SYSTEM:
France is a European nation which has for centuries played an important economic, cultural, and political role in world history. Originally inhabited by Celtic people in the Iron Age, it went on to become an independent republic in the Medieval Ages under influence of Roman and Germanic invasions. The French legal system belongs to the civil law tradition, like most continental European countries.
France is often classified as part of the Romano-Germanic family of law, because of its historical links with both Roman law, revived in the universities since the 12th century and Germanic customary law. From the thirteenth century on, the Northern part of France was under the influence of droit coutumier (Germanic tribe customs), and the Southern part was controlled by droit écrit (Roman law influence).
During the period from the 16th century to the Revolution, known as the Ancient Regime (ancien droit), France emerged as a nation-state, under the strong centralization of royal authority. The sources of law of that period included coutumes locales (local customs), Roman law, canon law, royal ordinances, the case law of the Parliaments, and doctrinal writings (doctrine). Law was taught in the universities.
France was also the cradle of the French Revolution which in 1789 led to the overthrow of the French Monarchy and the formation of a democratic republic. The French National Assembly formed directly after the Revolution passed the ‘Declaration of the Rights of Man and of the Citizen’ which is proclaimed to be the first direct declaration of human rights, or ‘natural rights’.
However, control over France soon shifted to the hands of Napoleon, who was crowned emperor of France in 1804. Napoleon, on taking office, oversaw several liberal reforms in the European society and one of his greatest contributions to the world was the enactment of the ‘Napoleonic Code’, officially called the ‘Code civil des Français’, in 1804. This codified body of law did not draw its content from earlier French laws but instead adopted features of Justinian’s sixth-century codification of Roman law, the ‘Corpus Juris Civilis’.
Before the Code, France did not have a single set of laws; law consisted mainly of local customs and there were also exemptions, privileges, and special charters granted by the kings or other feudal lords. The Code was set down keeping in mind the ideals of the French Revolution and it did away with privileges based on birth, allowed freedom of religion, and specified that government jobs should go to the most qualified.
It further laid stress on easily available, accessible and simply laid down laws which were even written down in various vernacular languages so that people could read and understand the laws. It did away with a huge mass of compiled and non-compiled laws, thus, reducing ambiguity. Also, Code Penal was also enforced during this period which comprehensively addressed Criminal Law and seized to recognize blasphemy, heresy, homosexuality, etc as crimes. The French Legal System, thus, became a Civil law legal system in its true sense.
Given the huge expanse of French territory in that time, it was adopted in many countries, and thus formed the basis of the private law systems of Italy, the Netherlands, Belgium, Spain, Portugal, and Poland. After the fall of Napoleon, the Bourbon Monarchy briefly held power, before the constitutional July monarchy was established in 1830. The second French Republic was formed in 1848, which again led way to an empire under Napoleon III soon afterward, which lasted for a short period before a republic was created again.
The current constitution on France was adopted in 1958 and is known as the Constitution of the 5th Republic. The Constitution declares France as a secular and democratic country, making it a unitary, semi-presidential republic.
At present, France follows a civil law legal system wherein laws are made through acts or statutes passed by the elected representatives of the people. French law is broadly divided into two principal areas: private law and public law. Private law includes, in particular, civil law and criminal law. Public law includes, in particular, administrative law and constitutional law.
In theory, the system is a direct contrast to the system of setting precedents as prevalent in Common Law Legal System and thus, case law is not an authoritative source of law and judges are prohibited from setting precedents (Art. 5 of the Civil Code). In reality, however, case laws exercise an important influence on the development of law.
The Constitution makes the President of the Republic the guarantor of the independence of the Judiciary and following Article 64, judges are irremovable.
Another fundamental tenet of the French judicial system lies in the duality of the court system: Judicial civil and criminal courts (also referred to as ordinary or regular courts) govern disputes among private individuals.
Administrative courts govern disputes any time the State is involved. Each court system has its own hierarchy and judges and applies its own law. The Cour de cassation is the highest judicial court, while the Conseil d’Etat is the highest administrative court.
PRIVATE LAW or le droit prive:
Private Law is the law applying to private individuals or groups. It has two major channels- Civil Law and Criminal Law. The Civil Law puts forward and upholds the several rights and obligations of the citizens of France and prescribes the method of compensating people whose rights have been encroached upon.
On the other hand, the Criminal Law deals with crimes or offenses which are considered to have been done against society and the state. It identifies certain acts or omissions as crimes and puts forward the suitable punishment for the people who commit such crimes. Following Article 66(1) of the Constitution, the death penalty is not allowed in France but the crimes are categorized into 3 classes depending on the severity of the acts.
Basic civil litigation concerning private individuals is dealt with by a local court, known as Tribunal d’Instance, or by a regional or departmental court known as Tribunal de Grande Instance, depending on the importance of the case. Commercial and business law is administered through institutions known as Tribunaux de commerce. These are known as “first degree courts”.
Appeals are heard in Cour d’Appel or Court of Appeal, a ‘second-degree court’. In France, there is a fundamental right of appeal in all cases and review de nova applies, which means that the entire investigation which may include a collection of evidence, examination of witnesses, etc can be done all over again in the first appeal.
Further, in exceptional circumstances, judgments of the Court of Appeal can be contested at the highest level, the Cour de Cassation, which is the French Supreme Court in matters of private law. However, this court deals purely with law points and does not dispute or re-ascertain the facts of the case.
Court of Cassation:
The Court was established in 1790 under the name Tribunal de cassation during the French Revolution, and its original purpose was to act as a court of error with revisory jurisdiction over lower provincial courts. It was meant to unify the legal system across the country and bring consistency in the system of dispensation of justice.
However, it is believed that a supreme court of judicature existed from earlier times as cases from the lower courts were often sent to the King’s Council for final adjudication. In that light, the contribution of the Revolution was that it shifted power from the King and his councilmen to judges.
The Cour de Cassation is governed by the Code of Judicial Organisation and is divided into rooms depending on the type of appeal it entertains. Originally, it had 3 rooms which were- civil, criminal and room request. Now, the number has risen to 6 and it includes- First Civil Chamber, Second Civil Chamber, Third Civil Division, Commercial, Economic and Financial Room, Social Room, and Criminal Division. Each of these has a President.
These rooms are itself divided into section presided over by judges decided by the President, depending on the seriousness of the issue in question. If the grounds are not very serious, a Bench of 3 judges hears the appeal, while in other cases a Bench comprising a minimum of 5 judges look into the matter.
On the decision of its President, the chamber may also sit in plenary session, for example, when the decision to intervene in a case could result in a reversal of precedent, or because it has to rule on a sensitive issue.
1. The First Civil Division (première chambre civile) deals with family law, successions (wills), child custody, professional discipline, individual rights, contractual liability.
2. Second Civil Division (deuxième chambre civile) handles divorce, civil liability (torts), and electoral matters.
3. Third Civil Division (troisième chambre civile) (or “Land Court”) deals with disputes on immovable property (real estate), housing, city planning, leases, foreclosures.
4. Commercial Division (chambre commerciale, financière et économique) handles companies, bankruptcy, business, banking, and intellectual property
5. Social Division (chambre sociale) handles labor disputes, worker compensation, and welfare.
Criminal Division (chambre criminelle):
It deals with criminal cases.
Apart from these six, another formation called the Division Court (Chambre Mixte) handles disputes where the subject matter of appeal falls under the purview of multiple divisions.
PUBLIC LAW or le droit public:
Public law is that division of law which governs the relationship between the public and the state. Complaints or litigation concerning public officials in the exercise of their office is heard in Tribunaux Administratifs, or Administrative Courts.
Appeals can be lodged, in this case, with the Cour administratif d’appel, or Administrative appeals court. The highest echelon, the Supreme Court for public law, is the Conseil d’Etat, or Council of State, the body ultimately responsible for determining the legality of administrative measures.
Council of State:
Conseil d’État, (French: “Council of State”), the highest court in France for issues and cases involving public administration. Its origin dates back to 1302, though it was extensively reorganized under Napoleon and was given further powers in 1872.
Initially, the Council consisted of members from the clergy, the old nobility, and the administration; and the members were considered to be just below princes and dukes. Their job was to advise the king on administrative decisions and disputes. Though the institution was significantly revamped after the French Revolution, it has long had the responsibility of deciding or advising on state issues and legislative measures submitted to it by the sovereign or, later, by the president, the cabinet, or the parliament.
It is the court in which French citizens may bring claims against the administration, though usually since 1953 such claims originate in the regional administrative tribunals of the first instance, and appeals are taken to the Conseil d’État. Progressively since 1987 certain appeals have been dealt with by seven new administrative appeal courts based in major cities. These courts are controlled by the Conseil d’État.
Chaired by the Vice President, the Council of State is organized to fulfill three tasks:
– The General Secretariat manages the State Council and the whole of the administrative court;
– The litigation section provides the function of judge the actions of governments;
– Five advisory sections and the section of the report and studies give opinions to the government on draft texts (laws, decrees, etc.) before they are passed and make the legal studies that are requested.
The Vice President chairs the General Assembly though, in theory, it can be chaired by the Prime Minister or the Minister of Justice. This Assembly does not only advise the government but also drafts the texts of legislations, decrees, etc.
He also chairs the Assembly of Litigation which looks into appeals of suits filed against the State or its functionaries. The VP is also the de-facto Chairman of the Higher Council of Administrative Courts, the Administrative Courts of Appeal and the Chairman of the Board of Directors of the National School of Administration (ENA).
Cases involving claims against government bodies, local authorities, or the central government, including all delegated legislation (e.g., statutory instruments, ministerial orders), are heard by the administrative courts for which the court of last resort is the Council of State.
In cases where there appears to be concurrent jurisdiction or conflict of laws between the judicial and administrative courts, whether both retain jurisdiction (“positive dispute”) or decline jurisdiction (“negative dispute”), the Jurisdictional Disputes Court (Tribunal des Conflits) decides the issue. The Court is composed of 4 members from both senior courts and occasionally, to break a tie, the justice minister who, if present, presides.
Article 56-63 of the Constitution of France provides for the establishment of a Constitutional Council to uphold its provisions. Neither the Court of Cassation nor the Council of State has the power to strike down primary legislation i.e., acts of Parliament. The Courts can, however, refuse to apply any statutory provision they consider inconsistent with France’s international treaty obligations.
The Constitutional Council, however, can strike down any law that it deems unconstitutional. Before a law is enacted, the French President, speaker of either house of Parliament, or, more commonly, 60 parliamentarians from the same house may petition the Council for review. Some laws, mostly constitutional laws, come before the Constitutional Council for review without first being petitioned.
However, after the Constitutional Amendment of 2008, Article 61 of the Constitution allows ‘posteriori’ review and it has been interpreted recently to allow even ordinary citizens facing trial can also appeal to this council questioning the constitutionality of the law under which they are being tried.
The Constitutional Council was first formed by the Constitution of the 5th Republic in 1958 with the duty to uphold the provisions of the Constitution. Its main function is to review proposed statutes passed by the Parliament before the President signs them into laws.
The Constitution of the French Fifth Republic distinguishes two distinct kinds of legislation: statute law, which is normally voted upon by Parliament and government regulations, which are enacted by the Prime Minister and his government as decrees and other regulations. Article 34 of the Constitution exhaustively lists the areas reserved for statute law: these include, for instance, criminal law. Any regulation issued by the executive in the areas constitutionally reserved for statute law is unconstitutional unless it has been authorized as secondary legislation by a statute.
The Council is made up of former presidents of the Republic who have chosen to sit in the council (which they may not do if they become directly involved in politics), and nine other members who serve non-renewable terms of nine years, one third of whom are appointed every three years, three each by the president of the Republic, the president of the National Assembly, and the president of the Senate. The president of the Council is selected by the president of the Republic. Following the Constitutional amendment of 2008, the appointments are subject to a parliamentary approval process.
An interesting point of the French Legal System is the importance it gives to the treaties and international agreements it enters into which hold primacy over acts of parliaments following Article 55 of the Constitution of France.
Title XV of the Constitution deals with the relation of the Republic with European Communities and the European Union. The European Court of Human Rights (ECtHR) has jurisdiction over claims of government violations in breach of the European Convention on Human Rights in any EU member country. Before the ECtHR grants an appeal, however, a claimant must have exhausted all available judicial recourse in the violating country; in France, this means following the appeals process to either the Court of Cassation or the Council of State.
Thus, France has a Civil Law Legal System which is governed by codes and legislations; unlike the Common Law Legal System which derives a huge mass of its laws from precedents set by courts of record. Further, it is an inquisitorial system and so, the judges or the jury take an active part in the investigation along with the police force. The lawyers do not get an opportunity to investigate and this is a far cry from the adversarial system followed in Common Law countries where the lawyers investigate while the judge remains absolutely neutral.
It is true that in the inquisitorial system, one does not suffer much from the incompetence of their lawyers as judges play an active role, but there may always be an innate bias of the judge against a certain party and this may lead to unfair judgments. However, France has the provision for review de nova which carries on an investigation for the second time on appeal. Also, the Administrative Courts, especially the Counsil d’Etat is a unique feature of the French Legal System because of its composition and functioning.
The Constitutional Council is also a highly powerful body, though it cannot be approached directly and can be approached only when all other options have been exercised. Further, for the citizens of France, the European Court of Human Rights is the last resort which has jurisdiction over all the countries belonging to the European Union and can punish the administration as well as issue injunctions to protect the rights of the people.
Thus, the French Legal System is a highly organized, multi-tiered legal system.
Formatted on February 16th, 2019.
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