Comparative Law Spring 2002Professor Susanna FischerCLASS 17FRENCH SOURCES OF LAW; GERMAN LEGAL PROFESSION & TRAININGFeb. 18, 2002

Hierarchy of French Sources

France has a hierarchy of sources like GermanyAt the top is the constitution, then constitutional statutes, and then statutes, whether enacted through the referendum process or the ordinary legislative process

Names of French Statues

Acts of Parliament are usually referred to by the date on which they were passed and by a number reflecting the year in which they were passedE.g. Act no. 95-880 of August 4, 1995. In practice, the Act is often simply referred to by its date

Statutes Resulting From a Referendum

Power to make these statutes is provided for in Article 11 of the Constitution, extended by an Act of August 4, 1995 reforming the Constitution (a loi constitutionnelle)President can submit to a referendum a Bill that contains one of 3 subjects1. Organization of public powers; 2. Reforming of economic/social policy of nation and public services associated with it; 3. Ratification of a treaty affecting constitutional institutions.

Scrutiny of Referendum

Conseil constitutionnel only has power to scrutinize voting irregularities for referendum but can’t scrutinize referendum unlike Act of Parliament

Parliamentary Statutes (Lois)

Parliament can legislate on only a limited number of subjects listed in Article 34 of the Constitution - other areas are to be regulated by the executive (art. 37)Conseil constitutionnel is supposed to make sure that Art. 34 and 37 are respected, but Constitution in fact has been interpreted to allow legislation to be made in subject areas that go beyond limits of Article 34

Executive Law: Ordonnances and Regulations (Réglements)

The term Ordonnance can’t be translated into EnglishSpecial form of delegated regulation - descendent of legislative decreesParliament can pass enabling Act allowing government to make ordonnances on a particular subject normally in legislative domain for limited period of time

Regulations

Made by executive and administrationHave become an increasingly important source of law in Fifth RepublicUntil 1981, government carried out a major construction program of nuclear power stations while refusing parliamentary debate on the subject

Different Kinds of Regulations1. Decrees - ordinary regulations made by President or Prime Minister2. Decisions - made in times of emergency by President3. Orders (ârretés) are made by lower bodies like ministers, mayors, local councils.The more senior the author of regulation in the administrative hierarchy, the higher the status as a source of law

Judicial Decisions (la jurisprudence)

In common law systems, court judgments are an important source of law Before the 1789 Revolution, French case law was accepted as an important source of law and French judges had a lot of powerAfter the Revolution, those involved with it thought that the power of judges should be reduced as it was felt they supported the old regime

Separation of Powers

Revolutionaries were keen supporters of principle of separation of powers and tried to reduce judge’s powers to mere application of law Judges were forbidden from creating law - they were just supposed to decide the case they were hearing

Art. 5 of Civil Code of 1804

Le juge doit se prononcer sur tout ce qui est demandé et seulement sur ce qui est demandé.

Judges are forbidden to give a judgment in general and regulatory concerns on the cases which are submitted to them

Civil Code Art. 1351

A judgment only binds the object of the judgment. The thing requested must be the same: the request must be based on the same case; the request must be between the same parties and brought by them and against them in the same capacityThus a judgment can only be applied in another case if the parties are identical and the issues raised are exactly the same

Precedent in French law

A court is not technically bound to follow a previous decision, whether handed down by itself or another court, unless it falls within the rare exception of art. 1351 of the Civil CodeJudges can never cite a previous judicial decision as the basis for their own judgmentWhat problems does this create for judges?

Problems for Judges

Law was to be found in the codes but these were drafted quite broadly, leaving a lot of unanswered questionArt. 4 of Civil Code: The judge who refuses to judge under the pretext of the silence, obscurity or inefficiency of the law, can be prosecuted for causing a miscarriage of justice

Do you want to be a French judge?

If a judge failed to decide a case at all, on the basis that there was no law on the question, he would be guilty of a criminal offence for which he could be fined or banned from carrying out his judicial functions for up to 20 years!

In fact, reality has moved away from theory

Influence of French case law has been increasing since the immediate backlash of the French revolutionEvery legal system needs consistency to achieve justice and it would be very dangerous for judges to just ignore what other judges are doingGradually, textbooks are placing more emphasis on judicial decisions

Some differences with common law systems remain

A judicial decision can still not be based solely on a previous decision - you need some other legal sourceFrench courts/academic writers rarely cite a single case, rather point out trends in the law

Law Reports

Official and private reports of judgmentsOfficial reporters, e.g., Bulletin des ârrets de law Court de CassationPrivate reports, e.g. those of J-B Sirey which merged with Dalloz and now publishes Recueil Dalloz Sirey every other week (doctrinal articles, case law, and legislative texts)

Custom : l’ancien droitA custom is a practice that has gained the status of a legal rulePrior to 1789, this was the predominant source of lawWhen Civil Code was passed, the legislative claimed to repeal all general and local customs - but in reality Code based on l’ancien droit Buut custom as a generic source of law continued to exist and is accepted as a source of law - if a minor one

Why Does Custom Play a Role?

The advantage of custom is that it is flexible and adaptable, though of course this means it is also imprecise and unreliableActs of Parliamanet refer back to custom to clarify legal expressions concerned with morality, such as “fault” or “acting in good faith” or “in the public interest”

Academic Writing

Opinions on the law developed by academics in their writing is not strictly a source of law in France, but is a powerful influence on its developingIt can be taken into account by judges when interpreting the law

Where Do You Find Academic Writing?

Répertoires (alphabetically listed encyclopedias of law like la Répertoire Dalloz)Traités are books written by leading academics, often when preparing their PhDs. They are very detailed, but often out of date because they are multi-volume and expensivePrécis, thémis, and manuels are student textbooksMémentos are like nutshellsLegal journals like Revue trimestrielle de droit civil

German Legal Profession

What is the meaning of the term Einheitsjurist?Do any legal systems have a different concept for their legal professionals?

German Legal Education

How do German students get into university to study law? Is it hard to get in?How old are first-year German law students, on average?How long do German students have to study law at university to go on to the next stage? How long do they usually study?

Curricula

What is the German university law curriculum like?What requirements are there to complete German university studies in law?What are Scheine?What does a law student do after completing university studies in law?