French law has a dual jurisdictional system comprising private law (), also known as judicial law, and public law ().
Judicial law includes, in particular:
() Criminal law ()
Public law includes, in particular:
Administrative law () ()
Together, in practical terms, these four areas of law (civil, criminal, administrative and constitutional) 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 ("ECJ") ruling, it intends to create a dozen or so European Union ("EU") criminal offences suggests that one should also now consider EU law ("droit communautaire", sometimes referred to, less accurately, as "droit européen") as a new and distinct area of law in France (akin to the "federal laws" that apply across States of the US, on top of their own State law), and not simply a group of rules which influence the content of France's civil, criminal, administrative and constitutional law.
Sources of law
Legislation is seen as the primary source of French law. Unlike in common law jurisdictions, where a collection of cases and practices (known as the "common law") historically form the basis of law,Merryman, J. H., and Perez-perdomo, R., The Civil Law Tradition, Stanford: Stanford University Press, 2007. the French legal system emphasizes statutes as the primary source of law. Despite this emphasis, some bodies of law, like French administrative law, were primarily created by the courts (the highest administrative court, the Conseil d'État). Lawyers often look to case law (la jurisprudence) and legal scholarship (la doctrine) for reliable, but non-binding, interpretation and statements of the law.
Legislative sources French legislative sources can be classified into four categories:
Constitutional laws, Treaties, Parliamentary statutes (loi), and Government regulations (règlements).
Hierarchy of norms
French legislation follows a hierarchy of norms (hiérarchie des normes). Constitutional laws are superior to all other sources, then treaties, then parliamentary statutes (loi),Article 55 of the French Constitution, which states: "Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party." then government regulations. Legislation enacted by orders (ordonnances) and regulations issued by the executive under Art. 38 of the constitution (Règlements autonomes) have the same status as parliamentary statutes.
EU law and international treaties European Union treaties and EU law enacted under the authority of EU treaties are superior to domestic law.See Art. 88-1 of the Constitution, laying down the EU institutional and legal framework French courts consider the French Constitution to be superior to international treaties, including EU treaties and EU law.See Conseil d'État, ruling in Sarran, Levacher et autres (1998), AJDA, 1039. See also the Court of Cassation decision in Pauline Fraisse (2000), Bull. ass. plen., no 4. This is in contrast to EU institutions, which sees EU law as superior to the laws of member states.Costa v ENEL ECR 585
Legislation There are several categories of legislation:
Organic statutes (Lois organiques) 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 (Lois référendaires) 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 (ordonnances) 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 (normally a judicial institution) 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 (Lois ordinaires) 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.Colloque Aix-en-Provence, Vingt ans d'application de la Constitution de 1958: le domaine de la loi et du règlement (Marseille, 1988) 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 (règlement) 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.Conseil d'État in Institution Notre Dame du Kreisker (1954), RPDA, 50 As such, the binding circulaires règlementaires are reviewed like other administrative acts, and can be found illegal if they contravene a parliamentary statute.See, e.g. Syndicat des producteurs indépendants (1997), D. 1997, 467
Case law Case law (la jurisprudence) is not binding and is not an official source of law, although it has been de facto highly influential.F.H. Lawson, A Common Lawyer looks at the Civil Law (Ann Arbor, 1953)56 French courts have recognized their role in gradually shaping the law through judicial decisions,See, e.g. Cour de cassation, Rapport annuel 1975 (Paris, 1976), 101 and the fact that they develop judicial doctrine, especially through jurisprudence constante (a consistent set of case law).L'image doctrinale de la Cour de cassation (Paris, 1994) There is no law prohibiting the citation of precedents and lower courts often do.R. David, French Law (Baton Rouge, 1972) 182-183 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.J. Bell, 'Reflections on the procedure of the Conseil d'Etat' in G. Hand and J. McBride, Droit sans frontières (Birmingham, 1991)M Lasser, 'Judicial (Self-)Portraits: Judicial Discourse in the French Legal System' (1995) 104 Yale LJ 1325J. Bell, French Legal Cultures (Cambridge, 2001) 175–185.
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 (articles 1382–1386) in the Civil Code.Les conditions de la responsabilité 3rd edn. (Paris, 2006)Les effets de la responsabilité 2nd edn. (Paris, 2001) Scholars have suggested that, in these fields of law, French judges are creating law much like common law judges.82G. Ripert, Le régime démocratique et le droit civil moderne, vol. 2 (Paris, 1948), 15 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.See G. Vedel, 'Le précédent judiciaire en droit public', in Die Bedeutung von Präjudizien in deutschen und französischen Recht (Arbeiten zur Rechtsvergleichung no. 123 (Frankfurt/Main, 1985).
The differences between French case law and case law in common law systems appear to be: (1) it is not cited in the highest courts; (2) lower courts are theoretically free to depart from higher courts, although they risk their decisions being overturned; and (3) courts must not solely cite case law as a basis of decision in the absence of a recognized source of law.E.g. Crim. 3 Nov. 1955, D 1956.557 note Savatier, where a Cour d'appel's decision was quashed because it had refused to exceed its normal maximum level of damages.
French judicial decisions, especially in its highest courts, are written in a highly laconic and formalist style, incomprehensible to non-lawyers.A. Perdriau, La pratique des arrêts civils de la Cour de cassation: principes et méthodes de rédaction (Paris, 1993)B. Ducamin, 'Le style des décisions du Conseil d'Etat' EDCE 1984–1985.129 While judges do consider practical implications and policy debates, they are not at all reflected in the written decision.M. Lasser, Judicial Deliberations. A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, 2004), 16, 44–61 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 FranceAndré Gouron, La Science du droit dans le Midi de la France au Moyen Âge (Variorum 1984) and in Paris. Despite this, Roman law was largely academic and disconnected from application, especially in the north.