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Comparative Law Spring 2003 Professor Susanna Fischer

CLASS 8 FRENCH GOVT Feb. 3, 2003. Comparative Law Spring 2003 Professor Susanna Fischer. WRAP-UP : French Legal History from the fall of Rome to the French Revolution. Gradual expansion (not constant) of centralized royal political authority

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Comparative Law Spring 2003 Professor Susanna Fischer

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  1. CLASS 8 FRENCH GOVT Feb. 3, 2003 Comparative Law Spring 2003Professor Susanna Fischer

  2. WRAP-UP : French Legal History from the fall of Rome to the French Revolution • Gradual expansion (not constant) of centralized royal political authority • Expansion of royal power that never results in abolition of different regional laws and regional courts • 2 general families of regional laws – the north/south divide • Laws are unequal- different law applies to nobility than others • Laws are patriarchal-women have little legal power

  3. Wrap-up: French Revolution: End of the Ancien Regime • Revolutionary leaders wanted to establish a new system of law that would apply to all France. • That did not happen though feudal/noble/clergy privileges were ended and regional courts were abolished. • The greatest legal achievement of the Revolution was la Declaration des droits de l’homme et du citoyen (Declaration of the Rights of Man) – still part of French law. Contains basic rights of equality, freedom of conscience, belief, association, expression, due process, presumption of innocence

  4. Wrap-up: Napoleon Bonaparte and the Codification of French Law • Napoleon came to power in 1799 • Centralized and consolidated government and codified the law in a Civil Code of 1804 (tort, contract, family, property law) • Also created the Conseil d’Etat • Defeated at Waterloo in 1815

  5. Civil Code (1804) • The Code’s final draft was divided into three main sections (Of Persons, Of Property and Different Modifications of Property, Of the Different Modes of Acquiring Property) and contained a total of 2,287 articles. It was issued as the French Civil Code in 1804 • Compare Napoleon’s code to Justinian’s

  6. Napoleonic Code (1804) vs. Justinian’s Code • Both drafted relatively quickly • Neither Justinian nor Napoleon were the authors of either code that bears their names • Both systematized the law: Justinian – Roman law and Napoleon – ancien droit and revolutionary law • Both relied on previous commentaries • Both focused heavily on private law

  7. The Style and Content of the Napoleonic Code • Very broadly drafted – state general principles so courts could apply principles to facts • See http://www.historyguide.org/intellect/code_nap.html • Family law, equality, succession, religion

  8. Subsequent Napoleonic Codes • Civil Procedure (1806) • Commercial Law (1807) • Criminal Law (1810)

  9. Modern French History: 15 Constitutions! • Restoration of the Bourbon monarchy: 1815-1848 • Second Republic: 1848-1852 • Napoleon III: 1852-1870 • Third Republic: 1875-1940 • Second World War/Vichy: 1940-1944 • Provisional Government: 1944-1946 • Fourth Republic: 1946-1958 (21 governments!) – what brought it to an end? • Fifth Republic: 1958-present

  10. De Gaulle and the Fifth Republic • What was DeGaulle’s role in creating the current Constitution of 1958? • How much power did DeGaulle want vested in the executive vs. the legislative branch of government • What were the basic principles that the new Constitution had to respect?

  11. Government of the Fifth Republic • Parliamentary regime (government answerable to Parliament) • Separation of Powers (independent judiciary, strong executive, limited powers for legislative branch) • Body responsible for enforcing Constitution: Conseil Constitutionnel. Responsible for ensuring proper elections, and respect for Constitution.

  12. The French Nation • Unlike the U.S. and Germany, France is not a federation but is a unitary state. • Revolutionaries abolished old feudal regional administrative structures (provinces) and replaced with new structures (départements – 100 in total, 96 for mainland France) that strengthened the central state. • Growing trend (since 1982 decentralization law) to transfer power from central govt to local representatives. 1982: creation of régions (22 in mainland France)

  13. Constitutional Amendment • Can the French Constitution be amended?

  14. Constitutional Amendment • Can the French Constitution be amended? • Yes. See C. 1958 Art. 89 • To be proposed by President on PM’s proposal OR by MPs • Either – voted on by both Houses in identical terms and then by referendum, or by 3/5 of both Houses meeting together in special meeting • Constitution has been amended many times. • Can’t amend republican form of government. • How does this compare to constitutional amendment in U.S.?

  15. A Reminder: Constitutional Amendment in the U.S. • The American constitutional amendment process is set out in Article V of the U.S. Constitution, which reads:  • The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the

  16. A Reminder: Constitutional Amendment in the U.S. cont’d legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate. 

  17. DeGaulle and Amendment • In 1962, DeGaulle initiated a controversial amendment of the Constitution concerning election of the President. • How was the Constitution amended at this time? • Why was this amendment controversial?

  18. Who is the Current President of the Republic?

  19. Who is the Current President of the Republic? • Jacques Chirac • “un bon gars” • Serving second 5 year term (change in 2001 – why?) – next will be Apr/May 2007 • Founder of RPR • Has been PM twice

  20. Who is the Current President of the Republic? • Jacques Chirac • Elections were an end to co-habitation (right-wing presidency and left-wing government) • Elected in May overwhelmingly (82.21%) over LePen (17.79%) .Turnout 9% up on the first round, on April 21, when a record abstention rate of 28% helped Mr Le Pen (16.86%) to beat Socialist leader Lionel Jospin (16.18%)-Chirac (19.88%) to to the second round - a result regarded as the biggest upset in French electoral history

  21. What are the Functions of the French President?

  22. What are the Functions/Powers of the French President? • Guardian of Constitution, Arbitrator, Guarantor of National Independence (Art. 5) • Power to appoint PM (Art. 8) • Power to call referendum (Art. 11) • Power to dissolve National Assembly (Art. 12) • Power to use emergency powers (Art. 16) • Power to make decisions re Conseil Constitutionnel (Art. 56) • Other miscellaneous powers – eg. Negotiate/ratify treaties (Art. 52), pardons (Art. 17)

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