Cameron Miranda
France has a civil law system, which is different from common law systems like those in the United States and Britain. In France, statutes within various codes take precedence over case law, and each case is decided individually according to its relation to the codified law and the judge's interpretation. This is in contrast to common law systems, where case law forms the basis of law, and judicial decisions are binding. While French law does have a concept of case precedent, it is not a significant source, and new decisions carry little precedential weight.
| Characteristics | Values |
|---|---|
| Type of Legal System | Civil Law |
| Basis of Law | Statutes within various codes |
| Case Law as a Source of Law | Not significant |
| Flexibility in Granting Different Types of Security Over Assets | No |
| Concept of Trusts | No |
| Judicial System | Inquisitorial model |
| Criminal Law | Governed by the Criminal Code and the Code of Criminal Procedure |
| Prosecutors | Members of the judicial branch |
| Arrest Warrants | Require judicial approval |
| Dual System | Droit public (public law) and droit privé (private law) |
| Hierarchy of Laws | lois organiques (institutional acts), lois ordinaires (ordinary acts), ordonnances (measures), règlements (regulations) |
| Law-making | Bills are drafted by the Council of Ministers and sent to Parliament for a final vote |
| Law-making Process | Quasi-presidential |
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What You'll Learn
France's civil law system
France operates under a civil law system, which is different from the common law systems of the United States, Britain, and some other countries. The French civil law system is rooted in Roman law and influenced by the Napoleonic Code, emphasising clarity and specificity in codified laws. This means that French law gives precedence to statutes and written laws as the primary source of law, rather than relying heavily on case law and judicial decisions as common law systems do.
The French civil law system has a dual jurisdictional structure, comprising private law (droit privé or judicial law) and public law (droit public). Private law deals with matters between private citizens, while public law defines the principles of operation of the state and public bodies. The French Parliament, which consists of the National Assembly (Assemblée Nationale) and the Senate (Sénat), plays a crucial role in shaping the legal landscape by proposing, debating, and voting on laws. The President of France chooses a Prime Minister, usually from the parliamentary majority, and both can issue executive regulations.
French criminal law is governed by the Criminal Code and the Code of Criminal Procedure. The Criminal Code prohibits violent offenses, pecuniary offenses, and provides general sentencing guidelines. The prosecutor (procureur) or, in serious cases, the juge d’instruction controls the police investigation and decides whether to prosecute. French prosecutors are members of the judicial branch, which is a unique feature compared to common law countries.
The French civil law system follows an inquisitorial model, where the judge leads the proceedings and actively participates in gathering evidence, acting in the public interest to bring out the truth. This contrasts with the adversarial model of common law countries, where parties in the case play a primary role, and judicial decisions create binding precedents. In French civil cases, one party has the burden of proof, but both sides and the judge collaborate to gather and provide evidence. There is no strict standard of proof, and primacy is given to the judge's "intime conviction," based on the free evaluation of the evidence.
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Common law systems and case law
Common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. Common law systems rely on precedent, which is maintained over time through court records, and historically documented in collections of case law referred to as yearbooks and law reports.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. More recent decisions, and decisions of higher courts or legislatures, carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts.
In common law systems, there is extensive freedom of contract, and few provisions are implied into a contract by law. This means that it is important to set out all the terms governing the relationship between the parties to a contract in the contract itself. This often results in a contract being longer than one in a civil law country. Common law still has practical applications in some areas of law, such as contract law and the law of torts.
France, on the other hand, follows a civil law system. This is different from the common law system in that a French court will apply relevant codes and regulations to the facts before them with little reference to prior case decisions. Legislation is seen as the primary source of French law. The French legal system emphasizes statutes as the primary source of law, in contrast to common law jurisdictions, where a collection of cases and practices (known as the "common law") form the basis of law. French criminal law is governed first and foremost by the Criminal Code and the Code of Criminal Procedure. The French system of law is also inquisitorial, where the judge leads the proceedings and the gathering of evidence, acting in the public interest to bring out the truth of a case. This is in contrast with the adversarial model often seen in common law countries, where parties in the case play a primary role in the judicial process.
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French criminal law
The French criminal justice system is structured in three levels, with the Police Court and the Correctional Court in the first instance. Appeals are held by the Cour d'appel. The Police Court hears summary offences such as traffic violations, limited assault, and breach of peace, while the Correctional Court hears less serious felonies and misdemeanours.
Criminal law in France is carried out within the rules of French criminal procedure, which set the conditions under which police investigations, judicial inquiries, and judgements are carried out. Like the legal systems of other liberal democracies, French criminal law is based on three guiding principles: the principle of legality in criminal law, an illegal act (actus reus), and intent (mens rea). It has been influenced by various legal, ethical, and scientific philosophical movements over the centuries, including European courts such as the Court of Justice of the European Union and the European Court of Human Rights.
French criminal procedure has its roots in customary law under the Ancien Regime of Louis XIV. The Criminal Ordinance of 1670 dealt with the jurisdiction of the national police force, the Maréchaussée. Major developments included laws passed around the time of the French Revolution, such as the 1808 Code of Criminal Procedure and the Penal Code of 1810. Modern criminal procedure was developed at the end of the Fourth Republic and codified in 1957, coming into force in 1958 and 1959 with the Code of Criminal Procedure.
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French inquisitorial model
France is not a common law country. It follows an inquisitorial model, which is typical of countries that base their legal systems on civil or Roman law. In the French inquisitorial model, judges lead the proceedings and the gathering of evidence, acting in the public interest to bring out the truth of a case. This is in contrast to the adversarial model seen in common law countries, where parties in the case play a primary role in the judicial process.
In the French inquisitorial model, the judge controls the pretrial hearing for bringing a possible indictment, investigating all aspects of the case, whether favourable or unfavourable to either the prosecution or defence. Witnesses are heard, and the accused, who is represented by counsel, may also be heard, but they are not required to speak and are not put under oath. The prosecution presents its recommendations only at the end of the hearing. The investigating magistrate will recommend a trial only if they are sure that there is sufficient evidence of guilt.
The French inquisitorial model also involves the active participation of trial judges in questioning defence lawyers, prosecutors, and witnesses, and they can order certain pieces of evidence to be examined if they find the presentation by the defence or prosecution to be inadequate. Before a case gets to trial, magistrate judges participate in the investigation of the case, assessing material by the police and consulting with the prosecutor.
The French inquisitorial model is distinct from the common law system, where case precedent and prior decisions form the basis of law. In France, legislation is created in the French Parliament, which has two chambers – the National Assembly and the Senate – and statutes are emphasised as the primary source of law. The Council of Ministers drafts most French laws, which are then sent to Parliament for a final vote.
The inquisitorial model is prevalent in Continental Europe, Latin America, African countries not formerly under British rule, East Asia (except Hong Kong), Indochina, Thailand, and Indonesia.
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French public and private law
France has a civil law system, which is different from the common law system of the United States and Britain. The French legal system is based on written civil law, with an emphasis on statutes found within various codes rather than case law. The foundation of the French legal system is the Napoleonic Code or Civil Code, which was passed in 1804 under Napoleon and after the French Revolution. This code encapsulated the rights and obligations of citizens, as well as laws of contract, property, and inheritance. There are about 78 legal codes currently in force in France, dealing with both public and private law.
French private law (or "droit privé") governs private individuals and private bodies, while public law ("droit public") governs the state and public bodies. The majority of French laws are drafted by the Council of Ministers (executive government), who adopt them and then send the bills to Parliament for a final vote. Each bill is given a number and is called a "projet de loi". Legislation may also be drafted by "députés" and "sénateurs" and can become law if adopted by both the National Assembly and the Senate. Adopted legislation is then passed to the President for signing.
French administrative law focuses on the proper functioning of the government and the public good, rather than constraining the government. French public bodies include governments, public organizations, and enterprises, which are subject to different sets of rules and have both privileges and additional limitations compared to private actors. Public bodies have police powers to regulate public health and order, as well as expropriate property. They must exercise their powers in the public interest, following principles such as continuity of services, adaptability, equality, and neutrality.
French criminal law is governed by the Criminal Code and the Code of Criminal Procedure. The Criminal Code prohibits violent offenses such as homicide and assault, as well as pecuniary offenses such as theft and money laundering. It also provides general sentencing guidelines. After a crime occurs, the police make initial investigations, and the prosecutor ("procureur") or, in serious cases, the "juge d'instruction" controls the investigation and decides whether to prosecute.
The French courts are divided into two parts: judicial courts, which deal with criminal and civil laws, and administrative courts, which hear cases in which government entities are a party. The highest judicial court is the Supreme Court of Appeals ("Cour de cassation"), while the Council of State ("Conseil d'État") is at the top of the administrative courts. There is also a third branch, the Constitutional Council ("Conseil constitutionnel"), which oversees the review of statutes before they are enacted and answers questions from citizens regarding the constitutionality of laws.
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Frequently asked questions
No, France has a civil law system.
Common law systems have greater flexibility in granting different types of security over assets and they also have the concept of trusts. Civil law systems, on the other hand, have a greater emphasis on statutes within various codes rather than case law.
The basis of law in common-law countries is a collection of cases and practices known as "common law".
The United States is an example of a country with a common-law system.
In France, the judge leads the proceedings and the gathering of evidence, acting in the public interest to bring out the truth of a case. In contrast, common-law countries typically follow an adversarial model where parties in the case play a primary role in the judicial process.
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