Cultural differences have always fascinated me. Over the years, summer holidays spent exploring continental Europe have made me aware how many things can differ within a relatively short distance. So perhaps it was to be expected that over the course of my Law with French and French Law degree (which includes a year studying French Law in Toulouse as well as an introductory module on civil law systems), I have become interested in how the French and English legal systems can be so different. Despite their differences, each still provide a solid, coherent framework of rules.
For those of you who do not know, the legal systems of England and France are quite distinct; whilst the former is a common law system, the latter follows the civil law tradition. But why does this distinction exist? What does it mean in practice? And will this distinction continue to exist in the future?
The doctrine of precedent: the key to understanding the difference between common law and civil law systems
On paper, the presence or absence of the doctrine of precedent is one of the most obvious differences between the two legal systems. As an integral part of the common law system, the doctrine of precedent can be defined as the policy of courts to adhere to principles established in earlier cases. In contrast, civil law systems contain no such doctrine, meaning that in theory, each case is decided in isolation on the issues of the case at hand alone.
Why the difference? To me, it seems that the answer lies in differing attitudes to resolving issues. By placing judge-made precedent at the heart of their legal systems, common law jurisdictions reflect the typical Anglo-Saxon approach of dealing with problems as they arise. On the other hand, the presence of a code in civil law systems is largely influenced by the spread of code-heavy Roman law throughout continental Western Europe.
Common law and civil law: not so different after all?
Today, although the presence/absence of the doctrine of precedent is still one of the most fundamental distinctions between common law and civil law systems, it can be argued that the two structures are moving closer together, departing from the ridged definitions adhered to in the past. This trend shows no sign of stopping (at least it didn’t prior to Brexit), particularly with regards to the common law moving towards a more civil-like system. This means that in the future, the two systems will be even less distinct.
As any student of common law knows all too well, the common law system now contains many statutes; I see these as ‘mini codes’ that are created to address specific problems, or to simplify or rationalise the law. The law of England and Wales is becoming more and more statute-based. Statutes are seen by many as the way forward; not only setting down the law on paper and encouraging legal certainty as a result, but also promoting adhesion to the Rule of Law by the judiciary. This is achieved by providing a tighter framework with less room for interpretation. Therefore, it can be argued that the future of the law of England and Wales is one that involves partial codification of our common law system.
Similarly, although there is no legal precedent in civil law systems per se, judges are still inevitably influenced by previous cases. For example, French judges sitting in the higher ranks of the court system sometimes manipulate the Civil Code to adapt to situations which could not have been predicted at the time of its creation in 1804. The majority of courts across France often follow these interpretations. In the very important Jand’heur case (Ch. réun. D. 1930.1.57) , the Cour de Cassation (France’s court of last resort – a court most similar to our Supreme Court) manipulated the Code to produce the general principle of no-fault liability in relation to accidents involving motor vehicles. In theory, this interpretation isn’t binding, and is certainly not part of official practice like the creation of statutes in common law systems. However, in reality, because this judicial interpretation was made so high up in the French court system, the lower courts were highly unlikely to deviate. This position has since been replaced by a law, the Loi Badinter.
In addition, many French legal codes are often updated (physical copies of many codes are updated yearly, meaning the attractive prices of last year’s Code may not be such a great bargain after all…). These updates frequently make a significant impact on French law. As I approached the end of my Business Law module in Toulouse, the lecture hall was informed that certain ambiguous parts of the relevant Code had been reworded, new parts had been added to clear up misunderstandings, and some chapters now had edited headings, a sure sign that the civil law system in France is far from rigid.
That being said, there are no signs that the French legal system will move away from codification any time soon; the attitude towards common law expressed by juristes is generally negative. Their reasoning is along the lines of the common law being an overly complicated, uncertain system that is fundamentally opaque to laypeople.
To conclude, it appears that although the doctrine of precedent is an important distinction between the two legal systems, today it is more important in theory than in practice. This stands to reason given the French courts are often using the Napoleonic Civil Code, which still contains many elements of the original version written over 200 years ago and inevitably requires adaptation to fit cases of today.
My experience of studying the law of England and France leads me to conclude that today one of the most obvious differences between the two countries’ legal systems, and perhaps between common and civil law systems more generally, centres on to whom the law is more sympathetic. Having studied contract law and tort law in both jurisdictions, it seems to me (albeit it being a broad generalisation) that French law is much more willing to protect the ‘little guy’, whilst English law favours enabling business to function. An example of this can be seen in the fundamentals of contract law. Take the rules surrounding offer and acceptance: generally, in English law an offer can be revoked by the offeror at any time before it is accepted by the offeree. This favours businesses; for example, if the item they offer suddenly becomes unavailable before the offeree accepts the offer can legally be revoked. However, French law limits revocability, citing the principle of legal certainty. Here, it is argued that the untimely revocation of an offer, before the offeree has had time to think about the consequences of accepting, will engage la responsabilité civile of the offeror. Thus, the offeror will be liable under tort law for damages (he is not liable in contract law as a contract had not at this point been formed). This approach favours the offeree, who is often a private consumer. A further distinction can be found in the French approach to silence as acceptance. In England, it is well known that silence cannot constitute acceptance (Felthouse v Bindley [1862]). However, in France the opposite is true; except in the case of a tenancy, silence constitutes acceptance, provided that the offeror intended to create an offer. This approach ensures the intentions of those who are not well versed in the intricacies of the law surrounding offer and acceptance are respected, where such parties are usually private individuals.
The future progression of both legal systems remains uncertain; they adapt to new challenges faced by the world such as the anti-globalisation sentiment that seems to be on the rise throughout the Western world. Differences in approach will undoubtedly not only echo cultural differences between each society, but will also highlight how the organisation of civil law and common law systems impacts upon their ability to adapt and evolve. This is illustrated directly by Brexit; the question remains whether common law will move back to relying more on the doctrine of precedent, turning its back on codification as something too heavily associated with EU law.
In my opinion, the benefits of statute law outweigh the disadvantages; it would be a significant blow to legal certainty to let go of the framework that statutes provide to our legal system. Only time will tell if Brexit will have any such impact on English law.
Image Credit – Daniel Vorndran / DXR via Wikimedia Commons – License