The Constitutional framework in the French and English legal system

 

“The following short article seeks to highlight the history and function behind the constitutional framework in the French and English Legal Systems which are considered to be the leading flagbearers and leading examples of the two most prominent legal systems in Civil Law System and the Common Law System respectively. They have been practice for hundreds of years, arguably the Civil Law System can be traced back to the year 527 AD to the times of the Roman Emperor Justinian while the Common Law System can be traced back to 1066 AD to the time of the Norman Conquest. There are some apt differences in these two legal systems which extends to their respective constitutions, sources of laws, functions and duties of the heads of state, and the highest sources of law making bodies in addition to the manner in which international treaties are incorporated into domestic laws by the Civil Law System and Common Law System.”

Before analysing and contrasting the constitutional framework between the French and English Legal systems, it is important to recognise in the legal arena, there are essentially two families of legal systems which are followed by legal jurisdictions worldwide- Common Law which originated from United Kingdom(UK) dating back to the Norman conquest in 1066[1] and Civil Law which originated from Continental Europe in the Napoleonic era and dating back as far as the Roman era from the codification Corpus Juris Civilis by Emperor Justinian.[2] Another less highlighted legal system exists in certain jurisdictions as mixed/hybrid legal[3] system where Common Law and Civil Law are intertwined in states such as in Louisiana (USA) and Quebec (Canada).[4]

France has a codified constitution, it is compiled together as defined by German Professor Helmut Coing.[5] The current constitution was enacted in 1958 in which the 1789 Declaration of the rights of man[6] and citizen are incorporated.[7] The United Kingdom(UK) in contrast, has an unwritten constitution. However, this term is somewhat misleading because UK, despite not having their constitution written and compiled in a single document, do have constitutional principles they must adhere to. These are contained in different sources such as statutes (Lois),[8] case laws, international treaties, etc thereby remaining uncodified.[9] The UK can afford to have an uncodified constitution because it has been free of political turmoil, revolutions for hundreds of years.[10] I think UK having an unwritten constitution is a good feature enabling them to modify governmental policies resulting in quicker decision making process unlike written constitution systems where a government may never steer away from their constitutional principles causing rigidity inefficiency in the decision making process.

The sources of law differ in these two systems. The UK has multiple sources of law[11] such as judge made law, statutes, delegated legislations, Human Rights Act,[12] European Union (EU) Law. Statutes and Delegated legislations are considered supreme above case laws however, the delegated legislation’s validity can be challenged[13] in the courts.[14] Civil Law has sources of law from Civil Codes alongside international laws via treaties which have been ratified domestically. As per Article 5 of the civil code, judges may only interpret the law and apply the law, but not create a new law.[15] It is noteworthy that Common Law judges and courts have to consider a degree of civil codes through the role of statutes in case judgements.[16] This was highlighted by legal scholar Peter de Cruz.[17] Arguably, the civil codes state and emphasize principles and provide no definitions. In contrast, statutes in common law are well defined and assist lawyers on when to apply them.[18]

An important aspect of the common law system is the doctrine of stare decisis. Translated from Latin it is to adhere to past decided case ratios resulting in precedent being set for similar future cases to seek guidance from, analyze and be judged similarly.[19] The principle of stare decisis also requires lower courts to adhere to the decisions of the judgements of higher courts[20] even if the lower court judge is in disagreement with the judgement, this is known as the doctrine of binding precedent. France has a similar approach known as  jurisprudence constant.[21] However, unlike stare decisis, it is not binding but persuasive.[22]

The head of the state is different of UK and France, however, some similarities do persist. In France, the head of state is the President who is elected through an election for a term of five years.[23] The French president holds power over major decision making such as matters of referendum, dissolution of the national assembly, taking necessary measures in crisis time, pardon for criminal offences, ratification/negotiation of international treaties.[24] He is also the guardian of the constitution and has the power to  carry out the proposals he made to the voters prior to election and is responsible for proper functioning of the public powers.[25] In addition, he is also the head of the armed forces and is responsible for critical defense related decision making[26] appointing Prime Minister. In comparison, the head of the UK is the Queen who holds power as a descendant of the English royal family, succeeding the throne. This is merely a ceremonial title. However, the queen holds an important power known as prerogative powers which are acts which the government may do  legally independent of the acts of parliament as per Dicey.[27] These are exercised by the Prime Minister in the queen’s name because only the Queen may formally make declarations of war or direct the armed forces to invade foreign territories, the queen is also the supreme source of law in the land as all bills may only become acts of parliament after receiving the royal ascent from the queen and she is responsible for the appointment of ministers, including the Prime Minister.[28] So in paper, the queen is the head of the state of the UK, but in practice, it is the Prime Minister who exercises the powers of the Queen in her name. The contrast here is that of the UK’s queen being a ceremonial figure as the head of state of which the prime minister exercises her powers which are left after conventions and statutes have taken away most of her powers while the French president is the head of state having actual power to exercise.[29] It can be said UK’s legal framework is that of a constitutional monarchy.[30]

The constitution in France may be amended by the President upon insistence by the Prime Minister or the members of parliament. However, for an amendment to be passed for a referendum, it must be passed by both houses in parliament first.[31] But in the case of government bills requiring amendments, it may be presented to the congress by the president and must be approved by three-fifth majority of the congress in order to be passed. There is one safeguard to these amendments that no amendments may be made which opposes the republican nature of the French Government or any amendment which may hamper the unity of existing French territories.[32] UK legal framework may change constitutional laws without any major procedures, as well as courts being able to change or develop existing constitutional laws, within the limits of judicial precedent however, conventions may change without any new and formal amendments.[33] Comparatively, UK constitutional framework has more flexibility and freedom when it comes to amending the constitution quickly, however, in practice more often than not, political decision making by the government in power prevents this from being practiced effectively.[34]

In the UK, Parliament is the highest form of law making body.[35] This is known as the doctrine of parliamentary sovereignty. A bill must first, as a bill pass through the House of commons and House of lords, then receive the royal assent in order to pass as an act of parliament. These laws may be on any subject the parliament chooses.[36] A point to note here is that despite international treaties being signed by the government through the approval of the crown can bind the UK in the international arena, they may not be relied upon by claimants domestically unless it is incorporated as a statute by an act of parliament[37] as UK is a dualist system.[38] Only then will the obligations set out in the treaty be enforceable as part of domestic law. UK has practiced this in the past through the enactment of European Communities Act 1972 and the Human Rights Act 1998.[39] This is known as dualism.[40] Since international treaty obligations may differ from domestic law, it was confirmed in Costa v Enel[41] that in the event of European Union law and domestic law differing, EU law shall prevail.[42] There are safeguards to prevent these clashes mainly through availing the aids of statutory interpretation available in English Law.[43] In France, the Conseil Constitutionnel is ready to ensure treaty laws do not clash with the constitution, however it was mentioned that it is not their powers to check if a domestic act is in line with international treaties.[44] It would seem that in the absence of a written constitution for the UK, Parliament Sovereignty exists. In contrast, France has a monist system[45] under which, international treaties become domestically enforceable upon being signed, this is known as direct effect.[46] However, in rare circumstances, some international treaties require to be ratified by an act of parliament in order to be approved.[47]

As part of UK’s uncodified constitution, the theory of separation of powers as introduced by Montesquieu,[48] a state should be divided into three organs[49]- Legislature (Parliament) making laws, the executive (Government authorities) administering the law and the judiciary to apply the law.[50] Each organ should be independent of the other ensuring a checks and balance situation is present where no organ gets too powerful.[51] Seperation of powers was strengthened after Constitutional Reform Act 2005.[52] France has a similar separation of power system derived from the Constitution of France adopted in 1958 more popularly known as the Constitution of the Fifth Republic.[53]

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[1] Catherine Elliot & Frances Quinn, English Legal System (18^th Edition Pearson 2017/2018) Pg-10

[2] William Tetley, “Mixed Jurisdictions, Common Law vs Civil Law (codified and uncodified): Part 1” [1999]

[3] Basil Markesinis, “The Gradual Convergence: Foreign Ideas, Foreign Influences and English Law on the Eve of the 21st Century” Clarendon Press, Oxford [1993]

[4] William Tetley, “Mixed Jurisdictions, Common Law vs Civil Law (codified and uncodified): Part 1 [1999]_­­

[5] Eva Steiner, French Law: A comparative approach (1^st Edition OUP 2010) Pg-40

[6] Elliot, Jeanpierre and Vernon, French Legal System (2^nd Edition Prentice Hall 2006) Pg-54

[7] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-79

[8] Eva Steiner, French Law: A comparative approach (1^st Edition OUP 2010) Pg-4

[9] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-79

[10] Nigel Morris, “The big question: Why doesn’t the UK have a written constitution, and does it matter?”(14^th February 2008) http://www.independent.co.uk/news/uk/politics/the-big-question-why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html accessed 17^th December 2017

[11] The Economist explains, “What is the difference between common and civil law?” (July 17th 2013) <https://www.economist.com/blogs/economist-explains/2013/07/economist-explains-10> accessed 19^th December 2017

[12] Human Rights Act 1998

[13] John Bell, ‘Reflections on Continental European Supreme Courts’ (2004)

[14] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-91

[15] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-153

[16] Stephan Handschug, ’Einführung in das kanadische Recht’, (1^st Edition CH Beck 2003) Pg- 14

[17] Eva Steiner, French Law: A comparative approach (1^st Edition OUP 2010) Pg-40

[18] William Tetley, “Mixed Jurisdictions, Common Law vs Civil Law (codified and uncodified): Part 1 [1999]

[19] Dazu Lundmark, JuS 2000 (546,548)

[20] Steve Wilson, English Legal System (1^st Edition OUP 2014) Pg-150

[21]  Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-154

[22] Eva Steiner, French Law: A comparative approach (1^st Edition OUP 2010) Pg-90

[23] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-114

[24] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-115

[25] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-114

[26] ibid

[27] Neil Parpworth, Constitutional and Administrative Law (9^th Edition OUP 2016) Pg-54

[28] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-114

[29] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-116

[30] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-82

[31] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-104

[32] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-81

[33] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-80

[34] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-82

[35] Raymond Youngs, English, French and German Comparative Law (3^rd Edition Routledge 2014) Pg-93

[36] Steve Wilson, English Legal System (1^st Edition OUP 2014) Pg-28

[37] Elliot, Jeanpierre and Vernon, French Legal System (2^nd Edition Prentice Hall 2006) Pg-56

[38] Elliot, Jeanpierre and Vernon, French Legal System (2^nd Edition Prentice Hall 2006) Pg-56

[39] Steve Wilson, English Legal System (1^st Edition OUP 2014) Pg-28

[40] Margot Horspool, European Union Law (9^th Edition OUP 2016) Pg-172

[41] Margot Horspool European Union Law (9^th Edition OUP 2016) Pg-75

[42] European Union, Law, Margot Horspool (9^th Edition OUP 2016) Pg-172

[43] Steve Wilson, English Legal System (1^st Edition OUP 2014) Pg-101

[44] Elliot, Jeanpierre and Vernon, French Legal System (2^nd Edition Prentice Hall 2006) Pg-58

[45] Sophie Boyron, “The Conseil Constitutionnel and the European Union” 1993

[46] Margot Horspool, European Union Law (9^th Edition OUP 2016) Pg-157

[47] Elliot, Jeanpierre and Vernon, French Legal System (2^nd Edition Prentice Hall 2006) Pg-56

[48] Neil Parpworth, Constitutional and Administrative Law (8^th Edition 2014) Pg-19

[49] Neil Parpworth, Constitutional and Administrative Law (8^th Edition 2014) Pg-20

[50] Walter Bagehot, “The English Constitution” (Oxford World’s Classics 2001) Pg-165

[51] Neil Parpworth, Constitutional and Administrative Law (8^th Edition 2014) Pg-23

[52] Neil Parpworth, Constitutional and Administrative Law (8^th Edition 2014) Pg-22

[53] Duguit, Leon, “Treaty of Constitutional Law, vol. 1, The rule of law: the problem of the State” (3rd Edition Paris: de Boccard” 1911) Pg- 645