Question 1A: For historical reasons, attitudes to judicial discretion and creativity in the use of legal sources are very different in France when compared with England and Wales. But this makes much less difference to the way judges actually decide cases than to the way in which judicial decisions are presented. Discuss, setting out your answers in accordance with French conventions as to the structuring of dissertations. Introduction
For English law, the three major historical events that mark the development for the English legal system are the Norman Conquest in the 11th century, the initiatives of Henry II in the 13th century and the struggles between the Crown and Parliament in the 17th century. In France, the most cataclysmic event of the past was the 18th century French Revolution. The greatest legacy of the Revolution in legal terms has been the theory and practice of codification. In order to answer this question it is important to examine both written (I), and unwritten (II) sources of French law.
The Codes are perhaps the most important French written legal sources, however is that really enough. To understand the attitudes to judicial discretion and creativity, it is imperative that we look at the unwritten source of case law and judicial decisions and see how they affect the outcome of cases. To see the difference of how cases are decided and how the decisions are presented, we must understand what relevance case law has in the French legal system. I – The Written Sources of Law French law forms part of laws known as the Romano-Germanic Family.
The common origin in ancient Roman law prior to France's codification, is the fact that the law was diversified amongst a number of different systems. Gradually, until the 12th century there was a clear dividing line traversing France roughly in line with the River Loire. In the South of the country, the law was mainly based on Roman law and the area was known as le pays de droit crit. The North of France people lived under a variety of customary laws originally Germanic, the area was known as le pays de droit coutumier.
The distinction between droit crit and droit coutumier survived, in theory, until 1789, but French law gradually began to emerge as a separate entity during the 17th and 18th Centuries. This was due to the rising power of central authorities, whereby further weight was given to the laws made by the King, and also due to political will power. In pre-Revolutionary France, the regional courts, known as Parlements, often had to interpret unclear local customs, they would issue arri?? ts de reglements, which are binding decisions, which were incorporated into the treaties.
Therefore, it is necessary to examine what the sources of French law are, the main sources are the Codes, however is that all that is needed? (A) – What is Codification and how did it arise? Due to the fact that there was a variety of existing laws in France, unification was necessary in order to run a comprehensive and stable legal system. It needed to have an ideological and political impetus to have action. The plan for a codification was announced during the French Revolution and the constitution of 1791 required the drafting of a Code Civil.
The Revolution did lead to new laws on various private law matters, namely succession law, family law, parental power and land law. The Code is particularly noteworthy for the way it combines traditional legal principles with new ideas of the day. This gives it the appearance not of a set of revolutionary laws but of a statute book designed for the ordinary citizen. The five Codes that exist today are the: In 1799 Napoleon Bonaparte came to power. He also wanted the new order to be legitimised by the creation of a new legal system.
The creation of the Civil Code of 1804 by Napoleon is now one of the pillars of the modern French legal system. The Civil Code was drafted in four months, by four practising lawyers, three of whom had close associations with the new centralised tribunal de cassation. The Code incorporated the main ideas of the revolution and the immediate post-revolutionary period. However, it relies a lot on the l'ancien droit, especially using the writings of Dormat and Pothier.
The extensive use of these works ensured continuity in many areas of civil law. However, the Codes are not the only source of written law in France, it is important to see what the other ones are and to understand what limits judicial creativity. (B) – What are the other written sources of law? As French Law is mostly codified, the primary source of law is obviously statute law. French law is very different from common law systems, where it is now taken for granted that the two main sources of law are Parliament and the judges.
In France, much more so than England and Wales, the constitution is a source of law, while the judges, playing a much reduced role compared with their counterparts in England, create law only in exceptional circumstances. The peculiarities of French law lie in the importance of constitutional norms and the distinction between statutes (lois) and regulations (ri?? glements). The first source that we will look at is none other than 'The Constitutional Block'. In law, the Constitution is not simply the 1958 text, but also:
The Declaration of Human and Civil Rights of 1789; – the preamble to the 1946 constitution; – the fundamental principles recognised by the laws of the Republic and referred to by the 1946 preamble Together these are known as 'le bloc de constitutionnaliti '. Certain provisions of the 'constitutional block' are not clear enough to constitute legal rule that can be applied in practice. The principles do have constitutional value, but are of very little use to the citizen.
For example, the right to work or the guarantee of rest and leisure time laid down in the 1946 preamble. The second source which is to be dealt with, are the international sources. There are two ways of integrating international sources of law to a country. A dualist system, adopted by the UK, means that an international treaty does not become law in that country automatically, instead, national law must first be passed to introduce it into domestic law and it then has the same legal status as that legislation. France adopted the monist approach of automatic integration.