French Law
Codification
Codification v Compilation
Codification establishes a rational and complete summary of the law in an area
Codification:
o Reform of existing law
o Completedness in a given area
o Rationality in its formal presentation
In the Code Civil Français: tort, contract, family law
Officially promulgated in 1804, shortly after 1789 Revolution
Before the Revolution there was the ancient regime
The code was a tool for a new legal order, appease the people after the revolution
Why is codification still important today to identify French Law?
Rather than a patchwork of laws sewn together by judges, the code is the source where
judges draw their decisions from
Advantages of codification
More accessible
Equality – everybody should have equal access to the law
Laïcité – not so much religious neutrality, as positive feelings of allegiance towards the state
Clarity and elegance in style
Provisions are expressed in a broad way, not burdened by a flurry of details
Not a necessity in all codified systems, compare with BGB
Dangers of codification
Ossification- law frozen in time
Generalisation – law less suited to individual cases
Legislation
You can have Acts outside the Code
o Argued that more important in France than in England
In France and Britain, legislation will prevail over judicial decisions in conflict
Legislation in England = inroad of common law
In France = basis/source of law
English judges will construe legislation strictly, will try to minimize inroad as much as
possible
In France, non restrictive interpretation of legislation
Difference in drafting styles
England: make texts judge-proof – detailed, technical, complex in order to anticipate every
eventuality
France: leave it to the courts to interpret the statute, text will be more open with broader
propositions
Under art.39, government can act to produce norms which complete legislative texts (i.e.
adding to the Act)
Pro of French – purpose of legislation will be more evident, even a layman whould be able to
understand the orientation of the legislation
Pro of English – easier to understand the practical impacts of the legislation, downside =
amount of detail in that document will make it difficult for a non-lawyer to understand the
text
In France there is no rule of precedent, need not be followed in subsequent similar cases
Lower courts are not bound by upper courts’ decisions, even with court de cassation
Conseil d’état highest in administrative matters, court de cassation highest in private matters
Court system very decentralised
Perruche Case important in French tort law
Madame Perruche was pregnant and thought she had rubella
She said if the child would get disease, she would abort
She got two contradictory blood tests, GP didn’t pursue matter further
Child was born heavily handicapped
Wife had a nervous breakdown, parents divorced
They sued for damages of the harm they suffered, and on behalf of the child for the pain
suffered by the baby for being born severely handicapped
CA in Paris held only parents’ harm suffered can be compensated
o There was negligence, damage, but causation?
What would have happened if the doctors had not been negligent?
o Mother could have aborted – led to no baby, not to a healthy new-born baby
o Handicap was caused by the rubella, not by the doctors
Held: Causation could have been ‘birth with a handicap’, but would have admitted that birth
was a harm, and by French morals birth can never be a harm
Court de Cassation decided both harms should be compensated for
Procedure – in France, the CdC sends case to another court of appeal to apply ruling to the
facts of the case – 2CA not legally bound to apply the decision – reverted to the 1 st CA’s
ruling
2nd Appeal to the CdC (with a 2 nd appeal in the same case, examined in plenary form, CdC’s
ruling becomes binding, because the process cannot go on forever
In 2000, CdC delivered a ruling in Assemblé Plenaire, taking a relaxed approach to causation,
that both damages could be paid
This is not law anymore, a statute was passed limiting compensation in such cases, and
ruling out compensation on behalf of the child
Precedent
Courts cannot refer to its own case law when making a decision
Thus this cannot be a ground of appeal, if a court does not follow a precedent
Art.1384 “A person is liable not only for the damages he causes by his own act, but alo for
that which is caused by the acts of persons for whom he is responsible or by things which
are in his custody.”
Even when there is codification, it doesn’t necessarily stifle all judicial creativity
In Public Law, there is no codification, constitutional law relies on case law
Case law now more important in France, because there is a decline in legislation
Legislation is less important in France because it is not at the highest ranking of the
normative hierarchy – the highest is constitutional review and international treaties
Article 55: International treaties prevail over legislation
o If in the course of legislation, court finds legislation is incompatible with ECHR, the
legislation will just be put aside, unlike here
Constitutional review: two types of review – since 1958, when the conseil constitutional was
set up – it was designed in quite restrictive terms, only carried out before promulgation of
the law, and only a few privileged people could see the conseil (Presidents of Republic and
Houses, and since 1974 members of the opposition)
No way of raising unconstitutionality of legislation in the courts, you could always raise the
problem of incompatibility
2008: Sarkozy raised issue about incompatibility, there is some kind of constitutional review
after promulgation – procedure is more complex
Judicial decisions
Principle of anonymity
No dissenting opinions
Depart from anonymity – documents which give insight into proceedings
o Rapport (report)
o The Conclusions
CdC decision will be one sentence, usually compressed in one page
Subject at top, verdict at the end
In the middle, CdC’s justification, one long sentence with loads of semicolons
Condensed and difficult style to decipher, with few arguemtns put forward to justify the
decision
You can rely on doctrine (refers to opinions of authors on the law – academics write notes
on CdC decisions)
Court Structure
Decentralised court structure
Separation between administrative and private law courts
Separation goes right to the end, no supreme court with overarching jurisdiction
Separation has historical roots
Courts of the ancient régime were called ‘parliaments’
o Attracted hostility because they had stopped all endeavours by Louis XVI to make
social reforms
o Revolutionaries were very cautious about judges interfering with administrative
matters
1790: Law passed (art.13 of 16-24 August 1790 Law) – see quote on slides – separation of
judges and administrative bodies (i.e. law making)
1799: Conseil d’état appears, Wasnt conceived as independent buy govt control
o Judgments delivered by the conseil were never binding on govt, only if approved and
signed by head of state
1872: Justice déleguée – power of justice is no longer retained by the govt, but delegated by
an in dependent body (CdÉ) – this is effectively when the Conseil d’état was created
Public and Private specialisation occurs almost from the beginning
ENA v ENM
ENA primarily trains high-ranking civil servants
Pros and Cons of division
Identifying competent court
Impartiality
o Case of Procola 1993
Conflicting decision
o Case of Quarez
ONE WORD = SYMMETRY
o Two sets of court, tow ways of being a French lawyer (public and private), two main
sources of law (legislation and case law), two ways of reviewing legislation
constitutional and international,
