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Current Legal Problems Volume 48 Issue Part 2 1995 (Doi 10.1093 - CLP - 48.part - 2.63) Bell, J. - English Law and French Law - Not So Different
Current Legal Problems Volume 48 Issue Part 2 1995 (Doi 10.1093 - CLP - 48.part - 2.63) Bell, J. - English Law and French Law - Not So Different
Current Legal Problems Volume 48 Issue Part 2 1995 (Doi 10.1093 - CLP - 48.part - 2.63) Bell, J. - English Law and French Law - Not So Different
FRENCH LAW-NOT SO
DIFFERENT?
Cultures (Englewood Cliffs NJ, 1976), pp. 5-10; C. Varga, Legal Cultures
(Aldershot 1992), pp. xvii-xx,
" See K. Modeer, 'Europeisk rattskultur och rattshistoria' in idem, Europeiska
Vykort (Lund 1994), 9.
5 For a good example, see D. N. MacCormick amd R. S. Summers, Interpreting
Statutes (Aldershot 1992).
6 Dalloz do publish a selection of texts called the 'Code administratif' and this
does contain a number of discrete administrative 'codes'. but neither of these
represent an integrated set of principles and rules which is characteristic of the Civil
code.
English Law and French Law 65
There is no denying obvious differences in legal culture between
England and France: the structures of the courts, legal procedure
(most markedly in criminal proceedings), the different legal
professions-for example the roles of the French huissier and the
notaire which have no real equivalentin English law. To undertake
a legal transaction such as buying a house, making a will, or
complaining that your landlord has failed to repair your flat, you
7 j. Beardsley, 'Proof of Fact in French Civil Procedure' (1986) 34 Am. jo. Compo
Law 459.
8 See j. Thibaut and L. Walker, Procedural Justice: A Psychological Analysis
(Hillsdale, New jersey, 1975) which compares reactions of students from different
legal systems to the fairness of different legal procedures: more generally J. Bell, in
K. R. Scherer (ed.),Justice.lnterdisciplinary Perspectives (Cambridge 1992), p. 128.
66 John Bell
law literature pays particular attention to major differences
between legal systems not just at the level of legal procedure,
professions and institutions through which lawyers work, but at the
level of how lawyers think, what it is to be a lawyer in a particular
system. This paper is a reflection on the nature of such suggested
differences between legal systems. It is not exhaustive. Rather it
attempts to highlight major features of the topic by drawing on a
comparison between two legal systems. Hopefully, this will be a
(a) Concepts
In his wide-ranging lectures of 1953, Lawson argues that there is a
great similarity between English law and French law: 'the more one
(b) Ideology
Rene David lays greatest store by ideology as the determinant of
difference between legal systems. We may use similar concepts, but
if they operate within a different ideological framework, their
meaning will be different.l" But within a common liberal political
ideology, David quickly emphasises the role of legal technique as
the principal determinant. All the same, I would argue that the
place of ideology is not to be neglected even in the analysis of
politically similar societies.
As has been pointed out by Gallie and others 17, although two
people may share the same concept, they may have different
conceptions which lead to different outcomes or positions. Atiyah
and Summers have used this insight to great effect in their
(c) Style
Zweigert and Katz argue that:
the critical thing about legal systems is their style, for the styles of
individual legal systems and groups of legal systems are each quite
distinctive. The comparatist must strive to grasp these legal styles, and to
use distinctive stylistic traits as a basis for putting legal systems into
groups.!"
For them, the distinctive features which are critical to identifying a
style are '(1) its historical background and development, (2) its
predominant and characteristic mode of thought in legal matters,
(3) especially distinctive institutions, (4) the kind of legal sources it
acknowledges and the way it handles them, and (5) its ideology'r'"
The agenda is thus widened beyond ideology to embrace history,
legal reasoning, and legal sources. Such an agenda has been
embraced with vigour by Basil Markesinisf ' as providing a basis for
identifying how developments of law in Europe will go forward.
There is much to be said for such a varied agenda which is not
essentialist in its approach, but tries to draw out family resemb-
lances between systems.
(d) Mentalite
A difficulty, however, with the concept of 'style' is that, in English,
it carries the connotation of something rather superficial, transient,
or at least inessential. Style touches not at the real substance of
what is done, but at the outward appearance or presentation. For
Geoffrey Samuel, the concept of style seems unhelpful in as much as
(e) Tradition
My own approach is closer to that of Merryman and has been to
suggest that law is not just a system of norms and values, but also a
set of practices and approaches of a specific legal community, and
that these features build together into a tradition:
A tradition may be defined as a complex of rules, concepts, institutions and
practices which characterise the way the law works in a particular area.
These features build together into a process. In shortt a tradition is a way of
doing things, which is handed down and shapes the way in which the law
operates.i"
The practice of law is an activity of engaging in a process of
interaction with a tradition which provides a framework for
handling social problems. The law is not simply a set of historically
created norms of statute or case-law which have to be interpreted, it
is also the practice of a historically, socially and politically
determined legal community which makes accessible those norms
and determines the criteria of correct interpretation. It is the
practice of that community which accords authority to the sources
34 [1990] 3 All ER at 922 para. 20: 'a body, whatever its legal form, which has
been made responsible, pursuant to a measure adopted by the state, for providing a
public service under the control of the state and which has for that purpose special
powers beyond those which result from the normal rules applicable in relations
between individuals is included ... among bodies against which the provisions of a
directive capable of having direct effect may be relied on.'
35 See]. Spencer and M. Delmas-Marty, in B. Markesinis, The Gradual
Convergence, above note 24, ch 2.
J6 However, G. Teubner, Law an an Autopoetic System (Oxford 1993), p. 61
rightly points to the fact that law does respond to the evolution of the external
environment, but often in its own particular way: by adaptation in symbiosis, rather
than by direct incorporation of the external ideas.
37 See F. Luchaire & G. Conac, La constitution de fa republique francaise (2nd
edn, Paris 1987), p. 140.
English Law and French Law 75
constitutional right to freedom of belief and freedom to express
that belief in school. So the wearing of a headscarf is not
incompatible with the secular nature of the school 'but this freedom
cannot permit pupils to bear signs of religious affiliation which, by
their nature, by the circumstances in which they are worn,
individually or collectively, or by their ostentatious or campaigning
character constitute an act of pressure, provocation, proselytism or
propaganda', ruled the Conseil d'Etat in its advisory opinion of
CONCEPTUALISM
But we may ask who is really doing the presentation of the French
legal system and who is 'the French lawyer' here. I suspect that
there is an important sense in which 'intellectual coherence' and
'elegance' are not general French virtues, but are predominantly
54 Ibid, p. 389.
55 Ibid., p. 389, para. 19; D. Lloyd, Introduction to Jurisprudence (6th edn by
M. Freeman, London 1994), p. 1265; Zweigert and Katz, op. cit., pp. 70-1.
English Law and French Law 81
seems to be that if the texts to be interpreted and the reasons given
for decisions are different, then something different must be going
on in the reasoning process. We are seemingly faced with the idea
that lawyers think differently. Barry Nicholas has expressed the
point very clearly:
It is clearly established that lawyers in each country approach a legal
problem and attempt to solve it in their own way. It is more difficult to find
(a) Concepts
We have already seen that the French often use their concepts in a
pragmatic way, much as English lawyers do. It may be that there
are differences in the specific concepts used, so that the framework
for reasoning differs. We may be faced with a contract problem in
one system, and a tort problem in another, and it may be that
certain differences in values are expressed through the concepts, eg
the concept of 'laicitie' in education. But in neither case is it a
problem of how lawyers think with the concepts. Both systems are
57 See, for example, Central London Property Trust Ltd. u High Trees House Ltd
[1947] KB 130; Cass.civ., 6 Dec. 1932, Chemins de fer de Paris a Orleans c. Vve
Noblet, D. 1933.1.137 note Josserand.
58 G. Samuel, ' "Le droit subiectif" and English Law' [1987] CLl 264; Zweigert
and Katz, op. cit., p, 70.
59 See Nicholas, in Contract Law Today, pp. 384-5, and see also his discussion
of the consequences of differences in the classification of issues as 'law' or 'fact':
ibid, p. 393.
English Law and French Law 83
Conclusion
I have been arguing that to find significant differences between legal
systems, it is necessary to focus on key elements of the legal culture
as a whole. I have eschewed rules and focused on key features of
104 G. Samuel, Foundations of Legal Reasoning, pp. 137-9 and 228, and note 77
above.
105 Ibid., p. 137; d. A. S. Meschariakoff, op. cit., p. 92.
106 Op. cit., pp. 143-4 and 209 respectively.
100 John Bell
teaching provided by those in practice and lacking much academic
credibiliry.l'" Academic law is apt to seek credibility by following
paradigms in other disciplines and it may be the excessive use of
the paradigm of law as a science (in the French sense) and the arts
paradigm of the analyse de texte which underplay the scope for
interpretative judgment and value policy discussion in law. By
contrast, judges on both sides of the Channel are faced with
individual cases to resolve and tend to react to the task in similar
107 Compare H. S. Jones, The French State in Question, pp. 30-2 with
W. Twining, Blackstone's Tower: The English Law School (London 1994), ch. 2
and fP. 138-9.
10 More on the line of I. D. Balbus, 'Commodity Form and Legal Form: an Essay
on the Relative Autonomy of Law', in C. E. Reasons and M. Rich, The Sociology of
Law (Toronto 1978), ch. 3. rather than G. Teubner, op. cit., p. 95.
English Law and French Law 101
had I time, I think the argument could be broadened to other legal
systems fairly easily). Differences are not predominantly deep, but
result from the context in which lawyers have to operate: legal
procedures, institutions, professions and education. Lawyers
throughout much of western Europe operate common norms from
the European Convention on Human Rights and the European
Union (as well as many other international treaties), they work
109 See G. Slynn, Introducing a European Legal Order (London 1992), ch. 1; Y.
Galmot in CERAP, Le contr6le juridictionnel de l' administration: bilan critique
(Paris 1991), pp. 229-38.
110 T. Vallinder (ed), (1994) 15 International Political Science Review n" 2.
llt 'A Matter of Style', supra note 21.