Compared law for dummies
At a time of celebration for the burial of the EU [fr], I guess it is time to give my small contribution to the build-up of a trully European spirit. So am I writing my first article ever in English on legal issues.
I have just started to study the 10 or so lectures we have about English Law and the English legal system and I am already striken by a number of differences and similarities.
Criminal law as the spirit of a Nation
Starting with the former, I am really surprised by the extent of the differences in terms of criminal law. In France at least, trial by jury does exist, but to a limited extent as it is used only for the most serious offences, known as crimes in French. Crimes are defined as offences where the possible sentences are 10-years inprisonment or more, which amounts to slightly more than 3000 cases each year. In the UK on the contrary, trial by jury is widely used. It is actually a right to be tried by jury for criminal offences, even if minor offences (AKA petty offences) can be tried without a jury in the so-called Magistrates’ Courts [en].
In France at least, it is often heard that the best guaranty of accused comes from the fact that there are several judges hearing a given case. This principle has a number of exceptions, mostly for petty crimes judged by the Tribunal de Police [fr] or the Tribunal Correctionnel [fr] (see the list there [fr]), but the principle of collegiality remains. In England on the contrary, even serious offences are heard by a single judge, and there is a jury to mitigate the risk of an error. This is what is considered to be the best possible guaranty for accused.
This proves in my humble opinion that some of guaranties offered in criminal proceedings are more of a psychological nature than of rational nature, which is not a problem per se. Actually, I don’t really know what is best between being tried by a college of judges or a jury, as you can easily imagine situations where it is best to be tried by the former (for instance because they are professional magistrates less likely to be threatened than jurors) or by the latter (because jurors would be less subject to political pressure). All in all, the best system is probably the most consensual one in a given society, provided it seats on a sound ground of human principles.
Smoothening differences
Switching to similarities, I really think that the opposition between common law and civil law systems is a bit of a stereotype. For sure, French judges are forbidden to make law (Code civil, art. 5 [fr]), but on the other hand when the Cour de Cassation [fr] issue a Considérant de principe, that is a part of the ratio decidendi that states in a very clear and general fashion the position of the Court on an important legal issue, it is binding to lower courts. When some of them try to resist, the Court of Cassation has means [fr] to impose its views, like stating its decision in the most formal formation of the court. To sum it up, there is no decision in French case law that states that all similar litigations will be solved similarily, buut similar cases are indeed solved similarily.
This is even more true when it comes to administrative law, where the limited number of statutes has forced the Conseil d’Etat [fr], the supreme court for the administrative order, to build up a self-standing case-law across the years. As you can see there [fr], the amount of cases eaten by French law students in administrative law is not that bad for a civil law country.
Finally, in both countries, case law and statute law complement each other; in both countries, the judges have an important role filling the gaps and interpreting the statutes; in both countries, the hierarchy of courts ensure that decision are de facto binding - or at least highly persuasive. In addition, both countries are subject to the pressure of international law and, more specifically, of community law, which smoothen their differences even more.
Ibn Kafka a dit :
Indeed, the more you read about foreign legal systems and about their inner workings, the more you tend to relativise the conventional wisdom about their distinctiveness. I could add a further example to your list of areas of law - torts law, or droit de la responsabilité civile délictuelle, where half a dozen of articles in the Code civil (articles 1382 ss.) have been mercifully fleshed out by numerous “arrêts de principe” by the Cour de cassation. There are differences, but not as always where we think they are - to mention another example, Great Britaon, viewed as the home of habeas corpus, has been frequently condemned by the ECHR for violation of substantive human rights…
Vendredi 29 juin 2007 à 19:18
Passant a dit :
Hi,
I think Cour de Cassation issues “Attendu de principe” and not “Considérant de Principe” which are issued by Conseil d’Etat, don’t you think?
Lundi 16 juil 2007 à 11:51
groM a dit :
Passant, you got one point
Mardi 17 juil 2007 à 12:02