Law of France


French law has a dual jurisdictional system comprising private law, also known as judicial law, and public law.
Judicial law includes, in particular:
Public law includes, in particular:
Together, in practical terms, these four areas of law constitute the major part of French law.
The announcement in November 2005 by the European Commission that, on the basis of powers recognised in a recent European Court of Justice ruling, it intends to create a dozen or so European Union criminal offences suggests that one should also now consider EU law as a new and distinct area of law in France, and not simply a group of rules which influence the content of France's civil, criminal, administrative and constitutional law.

Legislative sources

French legislative sources can be classified into four categories:
  1. Constitutional laws,
  2. Treaties,
  3. Parliamentary statutes, and
  4. Government regulations.

    Hierarchy of norms

French legislation follows a hierarchy of norms. Constitutional laws are superior to all other sources, then treaties, then parliamentary statutes, then government regulations. Legislation enacted by orders and regulations issued by the executive under Art. 38 of the constitution have the same status as parliamentary statutes.

EU law and international treaties

and EU law enacted under the authority of EU treaties are superior to domestic law. French courts consider the French Constitution to be superior to international treaties, including EU treaties and EU law. This is in contrast to EU institutions, which sees EU law as superior to the laws of member states.

Legislation

There are several categories of legislation:
  • Organic statutes are laws on areas specified in the Constitution, like presidential elections and the status of judges. Organic statutes must be referred to the Constitutional Council before they are passed, under Art. 46 of the Constitution.
  • Referendum statutes are laws adopted by referendum. The President has the power to refer certain bills, on the organization of public powers, social, economic, and environmental policy or the ratification of a treaty to a referendum, under Art. 11 of the Constitution.
  • Orders are legislative instruments issued by the executive, following Parliament delegation of law-making power in specific areas. Parliament first delegates law-making power on an area, along with the general contours of the law. Orders are then issued by the Council of Ministers, after consultation with the Council of State in its administrative capacity. Orders are usually valid for three to six months and need to be not voted down by Parliament at the end of the period to gain the status of statutes. Prior to approval they are considered regulations. New codes and major legal reforms are often enacted by orders.
  • Ordinary statutes enacted by the French Parliament, concerning only matters listed in Art. 34 of the Constitution. These matters include civil liberties, nationality, civil status, taxes, criminal law, and criminal procedure. However, contrary to the expectations of the 1958 Constitution, Parliament has often had a majority supporting the government. This political reality meant that Parliament's legislative domain has been, in practice, expanded to include any important topic. Subjects included in Art. 34 cannot be delegated to the government, other than by orders.
  • Regulations are legislations produced by the executive power. There are two types of regulations:
  • *Règlements autonomes: under Art. 38 of the Constitution, any subject not expressly specified in Art. 34 is left entirely to the executive. The legislative power is thus shared between the Parliament and the executive. Règlements autonomes have the force of law.
  • *Règlements d'application are rules arising from parliamentary delegation, analogous to delegated legislation in the United Kingdom. They can be challenged in administrative courts as contrary to the delegating statute.

    Circulaires

By contrast, administrative circulaires are not law, but merely instructions by government ministries. Circulaires are nonetheless important in guiding public officials and judges. For example, the Circulaire of 14 May 1993 contains detailed instructions for prosecutors and judges on how to apply new rules in the 1992 revised criminal code. Circularies are not considered sources of law in private courts, but are sometimes considered binding in administrative courts. As such, the binding circulaires règlementaires are reviewed like other administrative acts, and can be found illegal if they contravene a parliamentary statute.

Case law

is not binding and is not an official source of law, although it has been de facto highly influential.56 French courts have recognized their role in gradually shaping the law through judicial decisions, and the fact that they develop judicial doctrine, especially through jurisprudence constante. There is no law prohibiting the citation of precedents and lower courts often do. Although the highest courts, the Court of Cassation and the Council of State do not cite precedents in their decisions, previous cases are prominent in arguments of the ministère public and the commissaire du gouvernement, in draft opinions, and in internal files.
Some areas of French law even primarily consist of case law. For example, tort liability in private law is primarily elaborated by judges, from only five articles in the Civil Code. Scholars have suggested that, in these fields of law, French judges are creating law much like common law judges.82 Case law is also the primary source for principles in French administrative law. Many of the Constitutional Council's decisions are critical for understanding French constitutional law.
The differences between French case law and case law in common law systems appear to be: it is not cited in the highest courts; lower courts are theoretically free to depart from higher courts, although they risk their decisions being overturned; and courts must not solely cite case law as a basis of decision in the absence of a recognized source of law.
French judicial decisions, especially in its highest courts, are written in a highly laconic and formalist style, incomprehensible to non-lawyers. While judges do consider practical implications and policy debates, they are not at all reflected in the written decision. This has led scholars to criticize the courts for being overly formalistic and even disingenuous, for maintaining the facade of judges only interpreting legal rules and arriving at deductive results.

Codes

Following the example of the Napoleonic Civil Code, French legal codes aim to set out authoritatively and logically the principles and rules in an area of law. In theory, codes should go beyond the compilation of discrete statues, and instead state the law in a coherent and comprehensive piece of legislation, sometimes introducing major reforms or starting anew.
There are about 78 legal codes in France currently in force, which deal with both the French public and private law categorically. These codes are published for free by the French government on a website called Légifrance.
In 1989, the French government set up the Commission Supérieure de Codification, tasked with codifying laws. The Commission has worked with ministries to introduce new codes and codify existing legislation. Unlike the transformative Civil Code under Napoleon, the goal of the modern codification project is to clarify and make more accessible statutes in by compiling one code in a particular area of law and remove contradictions. Despite this, areas very often overlap and codes necessarily cannot contain all of the law in a given field.

History

In the High Middle Ages, most legal situations in France were highly local, regulated by customs and practices in local communities. Historians tend to be attracted by the large regional or urban customs, rather than local judicial norms and practices. Beginning in the 12th century, Roman law emerged as a scholarly discipline, initially with professors from Bologna starting to teach the Justinian Code in southern France and in Paris. Despite this, Roman law was largely academic and disconnected from application, especially in the north.
Historians traditionally mark a distinction between Pays de droit écrit in southern France and the Pays de droit coutumier in the north. In the south, it was thought that Roman law had survived, whereas in the north it had been displaced by customs after the Germanic conquest. Historians now tend to think that Roman law was more influential on the customs of southern France due to its medieval revival. By the 13th century, there would be explicit recognition of using Roman law in the south of France, justified by the understanding of a longstanding tradition of using Roman law in the custom of southern France. In the North, private and unofficial compilations of local customs in different regions began to emerge in the 13th and 14th centuries. These compilations were often drafted by judges who needed to decide cases based on unwritten customs, and the authors often incorporated Roman law, procedures from canon law, royal legislation and parliamentary decisions.
In the early modern period, laws in France gradually went through unification, rationalization, and centralization. After the Hundred Years War, French kings began to assert authority over the kingdom in a quest of institutional centralization. Through the creation of a centralized absolute monarchy, an administrative and judicial system under the king also emerged by the second half of the fifteenth century. Royal legislation also greatly increased beginning in the 15th century.
The was an important juncture in this period, as it ordered the official recording and homologation of customary law. Customs would be compiled by local practitioners and approved by local assemblies of the three estates, with disagreements resolved by the central court. At the time, the wholesale adoption of Roman law and the ius commune would be unrealistic, as the king’s authority was insufficient to impose a unified legal system in all French provinces. In the process of recording, local customs were sometimes simplified or reformed. By the 16th century, around sixty general customs were recorded and given official status, disqualifying any unrecorded customs from having official status. Roman law remained as a reserve, to be used for argumentation and to supplement customary law.
Accompanying the process of centralization and mercantilism, the king effectively initiated in the mid 17th century. Jean-Baptiste Colbert, the Minister of Finance and later also Secretary of the Navy in charge of the colonial empire and trade, was main architect of the codes. The first of such codes is the 1667 Ordinance of Civil Procedure, which established clear and uniform procedural rules, replacing previous rules in all royal jurisdictions and in the colonies. The 1667 Ordinance is the main inspiration of the Code de procedure civile passed in 1806 under Napoleon. Other codes include the 1670 Criminal Ordinance, the 1673 Ordinance for Overland Trade, and the 1681 Ordinance for Maritime Trade. Ordinances would later be drawn up on Donations, Wills, Falsifications, and Trustees, but a unified code of private law would not be passed until 1804, under Napoleon and after the French Revolution. Under King Louis XV, there would be a constant struggle between royal legislation, traditional conceptions of the law of the Realm, and parliamentary arrêts de règlements. Judges sided with the local parliaments and the landed aristocracy, undermining royal authority and legislation.
Even before the French Revolution, French enlightenment thinkers like Jean-Jacques Rousseau, with a theory of natural rights, and especially Montesquieu, who advocated for a separation of powers, were major influences on the law throughout Europe and the United States.
The French legal system underwent great changes after the French Revolution beginning in 1789, which swept away the old regime. By 1790, the National Constituent Assembly overhauled the country’s judicial system. A Penal Code would be adopted by 1791. The Civil Code, the Code of Civil Procedure, and the Commercial Code were adopted under Napoleon, reflecting Roman law, pre-revolutionary ordinances and custom, scholarly legal writings, enlightenment ideas, and Napoleon's personal vision of the law. These codes consisted of numbered articles, were written in elegant French, and were meant to be understood by the layman. In addition, they introduced many classically liberal reforms, such as abolishing remaining feudal institutions and establishing rights of personality, property and contract for all male French citizens.
However, not all the old regime's law were repleted, the articles 110 and 111 of the 1539 Ordinance of Villers-Cotterêts being the oldest still in use in the French legislation.