Comparative Law Spring 2002 Professor Susanna Fischer

1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 17 FRENCH SOURCES OF LAW; GERMAN LEGAL PROFESSION & TRAINING Feb. 18, 2002

2. Hierarchy of French Sources • France has a hierarchy of sources like Germany • At the top is the constitution, then constitutional statutes, and then statutes, whether enacted through the referendum process or the ordinary legislative process

3. 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 passed • E.g. Act no. 95-880 of August 4, 1995. • In practice, the Act is often simply referred to by its date

4. 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 subjects • 1. 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.

5. Scrutiny of Referendum • Conseil constitutionnel only has power to scrutinize voting irregularities for referendum but can’t scrutinize referendum unlike Act of Parliament

6. 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

7. Executive Law: Ordonnances and Regulations (Réglements) • The term Ordonnance can’t be translated into English • Special form of delegated regulation - descendent of legislative decrees • Parliament can pass enabling Act allowing government to make ordonnances on a particular subject normally in legislative domain for limited period of time

8. Regulations • Made by executive and administration • Have become an increasingly important source of law in Fifth Republic • Until 1981, government carried out a major construction program of nuclear power stations while refusing parliamentary debate on the subject

9. Different Kinds of Regulations • 1. Decrees - ordinary regulations made by President or Prime Minister • 2. Decisions - made in times of emergency by President • 3. 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

10. 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 power • After the Revolution, those involved with it thought that the power of judges should be reduced as it was felt they supported the old regime

11. 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

12. 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

13. 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 capacity • Thus a judgment can only be applied in another case if the parties are identical and the issues raised are exactly the same

14. 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 Code • Judges can never cite a previous judicial decision as the basis for their own judgment • What problems does this create for judges?

15. Problems for Judges • Law was to be found in the codes but these were drafted quite broadly, leaving a lot of unanswered question • Art. 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

16. 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!

17. In fact, reality has moved away from theory • Influence of French case law has been increasing since the immediate backlash of the French revolution • Every legal system needs consistency to achieve justice and it would be very dangerous for judges to just ignore what other judges are doing • Gradually, textbooks are placing more emphasis on judicial decisions

18. 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 source • French courts/academic writers rarely cite a single case, rather point out trends in the law

19. Law Reports • Official and private reports of judgments • Official reporters, e.g., Bulletin des ârrets de law Court de Cassation • Private 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)

20. Custom : l’ancien droit • A custom is a practice that has gained the status of a legal rule • Prior to 1789, this was the predominant source of law • When 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

21. 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 unreliable • Acts 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”

22. 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 developing • It can be taken into account by judges when interpreting the law

23. 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 expensive • Précis, thémis, and manuels are student textbooks • Mémentos are like nutshells • Legal journals like Revue trimestrielle de droit civil

24. German Legal Profession • What is the meaning of the term Einheitsjurist? • Do any legal systems have a different concept for their legal professionals?

25. 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?

26. 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?