This past summer I had the privilege of spending six weeks in France studying the French Legal system as well as a little about the European Union. The course was in association with Northern Illinois University College of Law where I am currently a 3L. I would like to share some of the basics of the French legal system as it differs from ours such as: the basis of the French legal system is in reaction to external control and is based solidly on laws by the people, for the people. The law is codified and constitutional questions are asked and answered prior to the law being passed. There are two jurisdictions: public law and private law. The appeals system looks similar to ours, but questions of law and fact are dealt with differently. Lawyers and judges come from the same background and choose their path right out of law school. The unique principle of contradiction combines the principle of adversarial representation with the principle of inquisition.
The basis of any legal system is firmly rooted in the history of the country. Briefly, some key points regarding French History are the three major influences: the King, the People, and the Outside. France had been occupied by outside forces through much of its ancient history. It had been a kingdom in recent history. Most recently, it has been a republic (currently the fifth). In 1804 Bonaparte Napoleon caused the Code Civile to be created in reaction to the occupation by external forces and the rule of Kings. The essence behind this code is that any member of the republic could have a copy of the Code for him or herself—a law of the people. A key component of the laws of France is that they are accessible to and made for the people. Politics is on the tip of every person’s tongue and the voting percentage is much higher than that of the United States.
France’s law is mostly codified, i.e. written by the legislative body. Tort law, however, is essentially judge made law, creating unpredictability, as precedent may not always be followed. Any constitutionality questions of the law must be dealt with prior to it becoming law. Questions of constitutionality are answered in the constitutional court made up of previous presidents of the republic and members of the National Assembly and Senate (the legislative houses).
France’s judicial system is divided into the judicial order (private law) and the administrative order (public law). A particular case stays only in one of these orders there is no crossover, in fact, there is a court, le tribuneau des conflits, which decides which order a case will be heard in. The administrative order deals with public law, that is, the law of the government and how it affects other branches of government, other countries as well as private citizens. The judicial order is that of private law or the law of citizens. Although technically public law, criminal law is processed in the judicial order. Issues of private international law, such as divorce among spouses of different countries are also dealt with under the judicial order.
The judicial order is composed of two degrees and a supreme jurisdiction (much like our trial court level, appeal level, and supreme court level). The first degree (trial level) has six sections: the criminal jurisdiction, the ordinary jurisdiction (general law topics) and four specialized jurisdictions. The specialized jurisdictions include commerce, labor, rural and affairs of social security. The second degree (appeals level) has the court of appeals including one criminal chamber and the court of assises (a criminal appeals court of sorts), as well as a social, commercial and civil chamber. The court of appeals essentially hears the entire case again including both issues of fact and of law. The supreme jurisdiction (supreme court level) is not a court of third degree and can only decide if the court below applied the law correctly or applied the correct law. In the judicial order the supreme jurisdiction is the Cour de Cassation. It has one criminal chamber, three civil chambers, one social and one commercial chamber. If the Cour de Cassation disagrees with the decision of the court below the case is sent back to be decided on the basis of the law as the Cour de Cassation sees it. While the court below doesn’t have to decide the case on this basis, eventually the decision of the Cour de Cassation will win out. But this process is usually seven or more years after the case began.
French lawyers (avocats) and judges (magistrats) come from the same educational background. After the Baccalaureat or our equivalent of high school, one can choose university to study law. Two to four years later one takes a competitive examination. Based on the scores of the examination one can choose to enter the Ecole Nationale de la Magistrature or the school for judges. Here the individual is trained as a professional judge.
Judges are judges from the very beginning of their law career. They are chosen from the top of their law classes by special examinations. They are trained for three years to be judges and tend to follow a particular career track starting in the juvenile court until they find the right spot for themselves. Judges may be sitting magistrates or standing magistrates. A sitting magistrate is what in the United States we typically see as a judge on the bench. A standing magistrate is a prosecutor, working for the government in the criminal jurisdiction. Therefore, the prosecutors are educated in the magistrature school and can change back and forth from standing to sitting.
In a criminal case, there is a principle of contradiction. The French observe the adversarial principle and each party is entitled to representation by an advocat. But there is also the principle of inquisition. The adversarial principle and principle of inquisition occur at the same time. On trial, the attorney does not question the accused. Instead the sitting judge will do the questioning, theoretically in an impartial manner. In such a case the sitting judge has studied the facts of the case as prepared by the parties and prosecutor and questions the witness or accused based on that knowledge. The advocts represent their clients by pleading-literally-before the court for their client, based on the law and the facts.