For international sources of law, the princi0ple of the superiority of international treaties over legal norms other than the Constitution has been clearly laid down. Article 55 clearly states that international treaties and agreements are of a higher status than ordinary parliamentary legislation. International law applies automatically in France is the three following conditions have been satisfied: (a) It has been ratified or approved; (b) published; and (c) applied by the other signatories. The third source is statutes.
French statue are much lower in the legal hierarchy than in the UK. In the UK, Acts are named after what they are about, for example, "the Police and Criminal Evidence Act 1984", in France they are given numbers, for example Act no. 95-880 of 4 Aug 1995. Statues in France can be made by referendum or parliament. Finally, the final written sources are 'ordannances' and 'regulations'. An ordannance is a special form of delegated legislation and constitutes the direct descendant of the legislative decrees. Regulations are made by the executive and the administration.
Explained above are the written sources of French law, however, there are unwritten sources that affect jurisdiction and it is important to examine 'case law' in particular. II – Case Law as an Unwritten Source In the UK, Court judgements 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, the power of Judges was reduced as people felt hat hey supported the old regime. The word 'jurisprudence' refers to the case law of the courts.
Unlike legislative law and custom, case law is not formally recognised as a source of law in the French legal system due to the separation of powers. As seen earlier, the primary source of French Law is in statute, and many of the rules of law which in England and Wales are the creation of the common law or equity, are set out in codes. The role of case law is a subsidiary one, and courts cannot base decisions on previous cases, and therefore their judgements do not contain detailed analyses of analogous cases as do those of English and Welsh courts.
However, case law is of persuasive value, particularly where there is a series of cases confirming a particular point. In private law, this will usually be an interpretation of a provision of the codes. In Administrative law, however, fewer of the rules of substantive law are found in legislative texts, and the role of judges has therefore, of necessity, been more creative. Case law may be seen as a supplement to the written law (A) – The Non-binding Nature of Case Law One of the strongest reasons for denying that the judges make law is the constitutional position of the judiciary.
In the Ancien Rigime, the King had legislative, executive and judicial powers, the latter being delegated to the courts, the Parlements. The Parlements took it upon themselves to make law in areas which were not regulated. The revolution brought about a Separation of Powers and to prevent any interference by the judiciary in the field of competence of the legislature, the 'loi des 16-24 aout 1790, provided that no decisions of the court could have regulatory effect.
The rule of the courts then is essentially one of interpreting and applying legal rules which emanate from a source other than the courts themselves; in effect, statute (and to a far lesser extent custom). The fact that a decision of the court cannot constitute a binding precedent is confirmed by the Code Civil, Article 5, which says: fendu aux juges de prononcer par voie de disposition glementaire sur les sauses qui leur sont soumises Generally, this means that the judges are forbidden from making general or regulatory decisions in respect of the cases coming before them.
This is confirmed by Article 1351 of the 'Code Civil', which provides that a judgement has binding authority only for the parties to the action. Even a Cour de Cassation, earlier decision may not be used as justification for reaching a later decision. No court can say that the reason for a decision was that it was "bound" by authority – if it does so, the decision would be quashed by the Cour de Cassation. The non-binding nature of precedents means that there is an inherent instability in case law.
However, this is not completely true, as precedents will normally be followed, and there is therefore a greater degree of security in case law than might be thought. If case law is chosen not to be followed and the lower courts refuse repeatedly, this 'judicial resistance' can result in the overruling of a case's validity, as seen in Article 1384 of the Code Civil. (B) – The Value of Case Law Article 5 of the Civil Code prevents case law from becoming a formal source, however, the effect of Article 4, is to underline the persuasive value of case law:
This can be understood to mean that the judge will be in breach of the obligations of his office if he fails to reach a decision on the grounds of the silence, lack of clarity or insufficiency of written law. In a case like this, the judge will want to make his decision on rational grounds and therefore he would seek guidance from case law.
Adherence to case law not only provides a rational basis for a decision in the absence of clear statutory guidance; it also accords with notions of justice in treating like cases in the same way. When examining the issue of the persuasive value of case law, it is important to bear in mind the role of the Cour de Cassation. The role is essentially that of ensuring the uniform interpretation and application of the law throughout France. The Cour de Cassation is unlikely to overrule its own previous decisions without good reason, but that does not mean that case law does not develop. Conclusion
Above, was mentioned one particular unwritten source of French law. However, there are two further unwritten sources of law in France: custom and academic writing. Customs are both flexible and adaptable which also means that they are imprecise and unreliable. The opinion of academics constitutes a powerful influence on the development of the law, although it is not strictly a source. To conclude, it can be seen that judicial discretion and creativity are limited in France in comparison to England. We can now understand what the written sources are and also how important case law really is, even though it is not formally a source of law.
The way decisions are reached does not differ that much between the two countries, however, the way the judicial decisions are presented does differ. The method of presentation in France is as follows: The judgment will first quote the relevant statutory provision (e. g. Vu l'Article 11343, Code Civil), and then set out, in outline the relevant facts on which the judgement is based. The reasoning is expressed formally and the arguments put forward by the parties are called moyens. One can see how this structure is different to those in English and Welsh law, even though the final outcome of the case may be of the same nature.