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Module 6

The Law and the People

Section 1: The French Legal System

Bas relief in Les Invalides in Paris (where Napoleon Bonaparte's tomb is housed) depicting the Civil Code of 1804.

Overview

This Section provides an examination of the French legal system.

Key terms and concepts: Civil Code, Common Law, juge d’instruction, Conseil d’État (State council), Conseil Constitutionnel, Code Pénal

Table of Contents:

· Chapter 15: In the Name of the Law (Sixty Million Frenchmen Can't Be Wrong, pp. 205-220)

· Overview of the French Legal System

· Comparison Between the French Civil Law and Common Law

· Differences Between the French and American Criminal Law

· Sources

Objectives for this section:

After completing the following readings, see if you are able to do these things:

· Describe the historical and philosophical roots of French law.

· Compare how judgment is rendered in a court trial in France and in the US? By whom? By what process?

· Briefly explain the difference between French civil law and English common law.

· Comment on the statement: Unlike in the US, in France, a person is guilty until proven innocent?.

· What do you think would have happened to Michael Jackson in France? Would he ever have been brought to trial for these charges in the first place? If he had, who would have decided the case?

Chapter 15: In the Name of the Law (Sixty Million Frenchmen Can't Be Wrong, pp. 205-220)

Study Questions:

· When and under whom did the French system of justice begin?

· What old concepts were eliminated from the Code Civil des Français (1804)?

· What is the fundamental unit of French society and who is its head?

· What is the main difference between the foundation of French civil law and Anglo-American Common Law?

· According to N-B, how did the Civil Code play an important role in 19th-century French business?

· What are the two other areas of French law? Who created them and when were they established? Which of these two is unique to France? What sort of Anglo-American law does it most resemble?

· What is the main structural difference between French and Anglo-American criminal law?

· What is the juge d'instruction? Does s/he have an equivalent in the Anglo-American system?

· Why does the French system place such an importance on the confession? What is allowed in France that would be a violation of a person's rights in the Anglo-American system that might lead to a person's quick confession to a crime in France?

· What is the role of the Conseil d'État (State Council)?

· What two new features have been added to the French legal system since 1958?

· Compare the place of the judiciary power in the structure of French government to its place in American government where it is a separate but equal branch from the Executive (president) and the Legislative (Congress). Do the differences you find in the French structure seem to weaken or strengthen the ability of the government to provide justice to all?

In Chapter 15, N-B look at the French system of justice, which dates to the time of Napoleon Bonaparte, the maker of modern France. Though the French may refuse to acknowledge him as one of their great ones for reasons N-B and other outsiders may not comprehend (pp. 206-207), he was the creator of the Napoleonic Code or Code Civil des Français (1804) (the French system of private law), which, as N-B note, "discarded Old Regime concepts like primogeniture, heredity, nobility, and class privileges" and " established the family as the fundamental unit of society and the father as head of the family" (p. 207). They go on to compare the Civil Code (based on clear principles from which laws are derived) to Common Law (based on precedents), which is the foundation for the Canadian and American systems, both of which follow the English model, except in Quebec. They point out the importance of the Civil Code as a preserver of French business and economic prosperity during the 19th century when political instability threatened the overall wellbeing of the nation. Although rewrites of the Civil Code have complicated its original clarity, N-B affirm that it still works because "two elements of the original spirit of the Napoleonic Code prevail: the drive to update principles and define a clear starting point" (p. 208).

N-B also discuss two other aspects of the French legal system that originated under Napoleon Bonaparte: the Code Pénal, or French criminal law, and a special category of law for civil servants known as administrative law, which is similar to martial law in that it applies to a special cadre of the population, members of the civil service corps or fonctionnaires. With regard to criminal law, they point out that the French system is inquisitorial, while the Anglo-American system is accusatory in terms of how guilt or innocence is determined. In the French system, the juge d'instruction (investigative magistrate) is not simply an arbitrator between the prosecution and the defense; s/he actively participates in the search for the truth. There is also the importance placed on confessions in the inquisitorial system which, as reported by N-B, are considered to be a central element of proof. Where Anglo-American police cannot hold suspects in custody without a lawyer and without filing charges for up to 24 hours, the French police can and do--and even for longer than 24 hours since the prosecutor can request a renewal. This gives the police an opportunity to work at obtaining a confession, and they have been known to use harsh methods, abuse, and even torture in some cases (p. 212).

In discussing administrative law, N-B give an overview of its origins and its history, including the creation of the Conseil d'État or State Council which, over time, has evolved into a judiciary structure that oversees all the courts that hear cases falling under administrative law. They also discuss the codification of administrative law (more like Common Law since it is based on precedents and not on stated principles). “Administrative law" ensures that civil servants perform their duty to make decisions as a function of the general interest" (p. 215). One who errs is found negligent for having committed a faute de service, or blunder, which is a serious offense in the French mind-set.

N-B close this part of the chapter by calling attention to the newest layer of complexity in the French legal system created in 1958: the Conseil Constitutionnel, "which rules over the constitutionality of the law" and also "...deliberates on disputes between Parliament and the executive branch (which runs the administration, p. 216)." They also mention the creation of another new position in 1973, that of a sort of ombudsman, or Médiateur de la République (Mediator of the Republic) whose job it is to resolve conflicts between citizens and the administration outside of the courts (p. 216).

In the last pages of this chapter N-B discuss one of the most problematic issues in the French government structure: the fact that the judiciary is not a separate branch of power from the Executive and the Legislative as it is in the Anglo-American systems. Rather, the administration, or executive power, is at the center of the French government. Justice, therefore, remains subordinate to the elected representatives (p. 217).

Overview of the French Legal System

For a good summary, read Joy Stoddard's brief at http://www.dcba.org/brief/aprissue/2001/art50401.htm (Links to an external site.)Links to an external site.

Comparison Between the French Civil Law and Common Law

The French legal system is based on Roman law, from which it takes it historical and philosophical roots. The Napoleonic Code of 1804 combined the broad spectrum of Roman law handed down over the centuries with the ideals of the French Revolution: liberty for the individual, equality before the law, and the separation of Church and State. Trained judges, not a jury of peers, render legal decisions according to their interpretation of the written and codified Code Civil.

In the US, the legal system follows English Common Law, which was codified by the Magna Carta in 1215. This system was brought from England by the early settlers and is essentially the law of precedents, or the "common sense of the community, crystallized and formulated by our ancestors.." (Asselin and Mastron, Au Contraire! Figuring Out the French, p. 136) Through inference and analogy, judgment is made based on comparison with similar cases in the past.

To read more on the differences between French, British, and U.S. law, click here (Links to an external site.)Links to an external site. . (Links to an external site.)Links to an external site.

Differences Between the French and American Criminal Law

It is often erroneously said that in France a person is guilty until proven innocent. This is not so, although it is in fact easier to prove someone guilty in a French court than in an American court. The reason for this difference is that French criminal justice requires what American law would call a "preponderance of the evidence," which means that the defendant is more likely to be guilty than innocent. In the American system, proof beyond a reasonable doubt is what is required for conviction, making it much harder to prove guilt than to maintain innocence (Asselin and Mastron, p. 137).

This article provides a good comparison of the two systems, with particular insight into the role of the investigative judge or juge d'instruction under the French system:

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1513&context=jclc (Links to an external site.)Links to an external site.

Another interesting article to read that highlights some of the features of French law is Jim Lehrer's interview with legal experts about the differences between French and US criminal law after the accident in Paris on August 30, 1997 in which Princess Diana of Wales was killed.

An interesting case is Michael Jackson's child molestation trial, which delivered a not-guilty verdict on all 10 counts on June 13, 2005. One article among many appeared in the Wednesday June 15, Los Angeles Times entitled "Big Loss Stings for Jackson Prosecutor." District Attorney Tom Sneddon is asked about a possible civil lawsuit by the victim's family where there is a lower standard of proof. Here is what he said:

"What happened in O.J.?" he asked, referring to the failed murder prosecution of O.J. Simpson and the subsequent successful civil lawsuit. "You don't need me to answer that question....I'm sure [Simpson prosecutors] Marcia Clark and [Christopher] Darden didn't feel any better when they got his Heisman Trophy," Sneddon said, referring to the highly publicized seizure of Simpson's assets after he lost the lawsuit. "My belief has not wavered and it will not waver. That's why we have juries instead of prosecutors to make the decision." (my emphasis)