The French and English Legal Systems

ENGLISH AND FRENCH LEGAL SYSTEMS ENGLISH AND FRENCH LEGAL SYSTEMS 7 English and French Legal Systems Name of the Student Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the University Author Name of the

Running head: ENGLISH AND FRENCH LEGAL SYSTEMS
English and French Legal Systems
Name of the Student
Name of the University
Author Name

1ENGLISH AND FRENCH LEGAL SYSTEMS
Answer 1:
The legal framework has been adopted by every nation to protect the citizens from any
disputes arising as a result of any conflict or contract. The purpose is to analyze the
constitutional framework of the French and English Legal Systems and distinguish both the
concepts in detail. It is to be noted that the concept of English Law and French Law do not fall
under the same category. It has been observed that the concept of English Law falls under the
common law system whereas the French Law system is based on Civil Law systems.
According to Faulkner and Douglas, the concept of English Legal system evolved much
before the Norman Conquest and gradually spread to the English speaking colonies of Australia,
U.S.A, New Zealand and Canada1. The framework of English law is a major part of the
European Legal Systems which is an ancient legal concept and emerged in England during the
Middle Ages and spread across the continents of British colonies. The views of Christopher was
different in this matter according to him the historical development of the common law system
of England started long before the reign of William the Conqueror in 10662. It was observed
during that with the advent of the English Legal system various obstacles arrived on its way of
success. The first problem associated with it was the doctrine of “stare decisis” which means
binding precedent3. The concept of binding precedent is based on the rule that the previous
decision of the court is to be followed in other words the court is bound to follow the decision
1 M. Faulkner, 'DOUGLAS GRAY (Ed.), From The Norman Conquest To The Black Death: An Anthology Of
Writings From England.' 2012 59 Notes and Queries.
2 A. J. CHRISTOPHER, 'The Religious Question In The United Kingdom Census, 1801–2011' 2014 65 The Journal
of Ecclesiastical History.
3 Evan Criddle and Glen Staszewski, 'Against Methodological Stare Decisis' Papers.ssrn.com, 2017
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2358150> accessed 19 November 2017.

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made by the previous judge or any other law making body. It has been criticized by many jurists
mainly because of the part that even if the previous decision made by the Court is disagreed the
present Court of Justice is bound to follow it.
The second problem related to the English Law system is that it an uncodified law. The
concept of uncodified law means unwritten constitution which can be defined as judge-made
laws4. In shaping the English Legal system the judges contributed enormously as the previous
decisions are relied upon while deciding any present case. In this context, it can be said that the
constitution of the English Law System is unwritten and referred to as uncodified constitution
and is composed of various documents. It has been observed that though some rules were written
in authoritative form by providing evidence however they were contained in various other
documents that are not in consistent with the Constitution.
The French Constitution is codified or written and is based on the principles of civil law5.
Oliver Beaud however emphasized on the features of French Constitution which consist of the
written constitution based upon the principles of civil laws, administrative laws, commercial and
corporate law6. The legislative enactments contained in the written constitution is relevant to
follow and is considered binding for all. The legislative enactments contained in such legal
system are accurate and there is little scope or even no scope at all for judge-made laws. The
countries which follow the system of civil law are continuously updated with the recent legal
4 Vernon Valentine Palmer, 'Double Reasoning In The Codified Mixed Systems – Code And Case Law As
Simultaneous Methods' 2017.
5 David Law and Mila Versteeg, 'The Declining Influence Of The United States Constitution' (Papers.ssrn.com,
2017) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1923556> accessed 19 November 2017.
6 Olivier Beaud, 'The Founding Constitution. Reflections On The Constitution Of A Federation And Its Peculiarity'
2017 SSRN Electronic Journal.

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codes, the application procedures and the punishment appropriated for the offences. In case of
civil law system, the role of the Judge is to determine the facts of the cases and establish a proper
conclusion for the same by applying the required provisions of the statute. It can be noted that
the Judge has the supreme power to investigate into the matter, make suitable changes and give
decision keeping intact the provisions of law. The Judge in any case cannot go beyond the
statutes of the codified set of laws and also cannot modify the legislative framework contained in
such written constitution.
The practice of civil law system started throughout the Europe colonies and with the
growing pace of European States it sought to establish an independent legal system7. The
Medieval Scholars of the Catholic Church had influenced the thought and ideas of the common
people long before the advent of the civil law system8. The common people of Europe were
governed by the views of the Roman Catholic Church and there was no scope for independent
thinking. The birth of civil law system in the medieval period and its evolution marked an
significant change in the development of European Legal system.
The Constitution comprises of the fundamental principles and rules of the legal system
which governs the relationship between the State and the general public. The rules that have been
set up in the Constitution are responsible for regulating the government of a country. It has been
stated that each country should have a constitution of its own to ensure peace and stability for the
citizens. The function of the Constitution is to impose limit and control over the discretionary
power of the government. In some cases it has been observed that the government abuses its
7 'Interconnections Between Civil Procedure Law And Substantive Law: The Problems Of The Theory And Practice
(Ending)' 2017 Актуальные проблемы российского права.
8 Patrick Wadden, 'Church, Apostle And People In Early Ireland' 2017 medieval worlds Medieval Worlds.

4ENGLISH AND FRENCH LEGAL SYSTEMS
power independently by opposing the rule of public policy and in such cases the Constitution has
the absolute power to oppose such discretionary act of the government.
The English Constitution is defined as unwritten laws and often described as uncodified
constitution. The basic principles of the English Constitution are the Rule of Law and the
Parliamentary supremacy. According to McCordinale and McKerrell, the Constitution of United
Kingdom being uncodified is dependent on Rule of Law and the Parliamentary Supremacy9. The
concept of Rule of Law is based upon the principle of legality which highlights the point that the
policy of the government is based on the principle of law and not on men. In other words Rule of
Law can be defined as the law which is supreme and its decision is binding on all. The Rule of
Law is the supreme and its principle is to safeguard the interests of the general public in order to
safeguard them from the discretionary power of the government and the rule is same for all as
both the rich and poor are equal in the eyes of law. The Parliamentary supremacy is the highest
law making body and it regulates the functions of the legislature, executive and the judicial.
The French is written and described as codified constitution and incorporates all the
principles of national sovereignty. In French Constitution the President has the supreme power to
conduct meetings and has an impact on both the executive and the judiciary. The President also
acts as the commander of the military during the time of national emergency and war. The Prime
Minister is appointed by the President and it is the Prime Minister who regulates the decisions
taken by the President within domestic jurisdiction. The French Parliament consists of the Senate
and the National Assembly where the Senate is elected by electoral colleges for a fixed term of
six years. The decision of the National Assembly is considered to be final as it is more powerful
9 Chris McCorkindale and Nick McKerrell, 'Assessing The Relationship Between Legislative And Judicial
Supremacy In The UK: Parliament And The Rule Of Law Afterjackson' 2012 101 The Round Table.

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than the Senate. In some cases when occurs any disagreement between the two Houses the
government calls upon a conference which involves the representatives of both the Houses. The
government calls upon the National Assembly to make the final decision when the representative
of one of the Houses rejects the proposal held in such conference. The only similarity that can be
found between an English and French constitutional system is the number of Houses that is
France consists of two Houses- the Senate and Council of the Republic while United Kingdom
consists of the House of Lords and the House of Summons.
Lastly it can be added that the France has a unitary and republic constitution10. The
English speaking countries on the other hand is composed of four entities which powers are
concentrated on the centre of the government and therefore it cannot be considered to have a
unitary constitution. The three powers are known as executive, legislative and the judicial which
separately perform various functions of the government.
Answer 2 a):
The legal system of Australia has been developed from the legal system of Britain which
is known as the Common Law system. The Common Law system is based on the structure that
was inherited by countries whose development was vastly influenced by the British Colonialism.
The people under the Australian Legal system are treated equally in the eyes of law and
safeguarded in order to ensure security from the discretional power of the government officials.
The courts of Australia follow the adversarial system which has been inherited from the English
Legal System11. The Australian legal system has been regarded as the world’s most important
common law legal system. The adversarial system of Australia is not directly presided by the
10 William Rispin, 'France In The Hollande Presidency: The Unhappy Republic' 2017 25 Modern & Contemporary
France.

6ENGLISH AND FRENCH LEGAL SYSTEMS
Judge; the Judge acts as the third party while the systems comprises of two parties standing
opposite each other presenting their cases. The Judge makes the final decision after hearing both
the parties and cross examining all the witnesses. Many Authors have expressed their views on
the point that why there is a single common law system in Australia and whether the federation
of Australia has its own common law. It has been argued by Waldron that the legal system of
Australia is complex and has a broad sense of view based on the doctrines of separation of
powers and judicial precedent12. The principle of Rule of Law is an important characteristic
feature of the legal system of Australia which applies to all the individuals and according to this
feature every individual is treated equally before law.
It has been previously discussed that the doctrine of common law system is based on
previous decisions taken by the higher authority. The common law system allows new ideas to
be developed with the changing values and situation of the society. Canada and its provinces
follow the system of common law which is uncodified and unwritten. Canada has adopted two of
the world’s law systems that are Common Law in the nine provinces and territories and civil law
in Quebec. The Common Law system has been followed because while making any decision the
decision from any traditional case can be relied upon. According to Connor, the system of
Common Law evolved in England during the 11th century which was later adopted by a number
of countries-Canada, Australia, USA, New Zealand and other countries of the British Colonies13.
The system of Common Law has been created as a result of precedent decisions that is the
decision of the earlier Courts of Justice are considered while making any new decision. The
11 Adversarial System And Legal Equality Of The Parties In Criminal Proceedings Of Appeal And Elements Of Fair
Trial: Position Of The European Court Of Human Rights' 2016 Актуальные проблемы российского права
12 J. Waldron, 'Bicameralism And The Separation Of Powers' 2012 65 Current Legal Problems.
13 Vivienne O'Connor, 'Common Law And Civil Law Traditions' 2012 SSRN Electronic Journal.

7ENGLISH AND FRENCH LEGAL SYSTEMS
reason why many countries adopted the system of Common |Law is that it is easy to follow and
at the same time the decisions are not Judge made. It has been established as a rule in those
countries that the decision of the previous cases should be followed in the subsequent cases thus
respecting the decision of the precedents.
Answer 2 b):
The jurisprudence of Australia is a complex structure and is based on the common law
system of United Kingdom. The common wealth of Australia came into operation after the
Common Wealth of Australia Constitutional Act of 1900 which was passed by an Act of the
United Kingdom and Queen Victoria gave her approval on this behalf in form of her Royal
Assent14. The Parliament of Australia in order to amend the constitution of Australia removed the
powers of the United Kingdom. The enactment of Australian Act of 1986 marked its final
transformation from colonial powers to legislative powers that is it can exercise legislative
powers from its own which was earlier vested in the hands of the United Kingdom Parliament.
Canada follows the parliamentary system of government which was established by an act
passed by the United Kingdom Parliament. There are three branches of government vested with
the government- the legislature, executive and the judiciary. In United Kingdom, the Parliament
controls the legislative power while the executive power is vested with the Queen. The judicial
system is composed of federally appointed Judges whose duty is to solve any disputes between
states and to apply the law and the Constitution wherever necessary. In United Kingdom, the
Queen is the head and has the ultimate power and the constitution of the country is unwritten as
in case of common law system. It is worthy to mention here that Quebec is the only province of
14 Michael I. Norton and others, 'The Not-So-Common-Wealth Of Australia: Evidence For A Cross-Cultural Desire
For A More Equal Distribution Of Wealth' 2014 14 Analyses of Social Issues and Public Policy.

8ENGLISH AND FRENCH LEGAL SYSTEMS
Canada which follows the system of civil law. The constitutional system of Canada is quite
complex as it involves the mixture of both civil law and common law. In addition to this it can be
mentioned that the Preamble to the Constitution of 1867 provides that the constitutional
principles of Canada will be similar to that of United Kingdom. The executive powers of the
Canadian government are vested with the Crown whereas the legislative powers are vested with
the Parliament which reflects to the same situation in United Kingdom. In this way it can be
established that the common law system of Australia and Canada reflects the common law
system of United Kingdom.
Answer 2c):
It can be mentioned that since time immemorial the legal system of Australia has been
influenced by other legal systems. Those legal systems have been summarized below:
Adversarial and Inquisatorial systems:
Adversarial system is a system of law that has been used in the countries of England and
United States of America while the inquisitional system falls under the category of civil law
system and is usually applied by the European countries. The adversarial system is different from
the inquisitorial system in many ways the important among them is that in case of adversarial
system of law the previous decision of the higher Courts will be binding on the lower Courts15. In
case of inquisitorial system of law the Judges make decision from their own conduct and do not
rely upon previous decisions of the higher Courts.
Customary Law:
15Adversarial System And Legal Equality Of The Parties In Criminal Proceedings Of Appeal And Elements Of Fair
Trial: Position Of The European Court Of Human Rights' 2016 Актуальные проблемы российского права.

9ENGLISH AND FRENCH LEGAL SYSTEMS
The system is customary law is quite similar to common law because customary laws are
unwritten16. Recently, it has been observed that the indigenous people of Australia followed the
system of customary law in order to regulate their societies.
International Law:
International law can be defined as the law which regulates the relation of citizens of
different nations thus creating a legal relationship. The international treaties are the written
documents which includes the United Nations Convention on the law of the Sea and
International Covenant on Civil and Political Rights (ICCPR)17. The principle of international
law has been accepted by every country in order to meet the growing demand of international
business. In some countries whenever a treaty is ratified it acts as a part of the domestic law of
that country however in case of Australia this principle is not applicable.
In the same way the legal system of Canada has been influenced by other systems of law.
Those can be categorized as:
Foreign laws:
In recent years there developed a significant impact of foreign law on the constitutional
system of Canada. It has been discussed that Canada follows the system of civil laws where the
application of customary law is absent and hence the provisions of foreign laws can be applied
accordingly. The application of foreign laws can be applied to the constitutional structures of
16 Benedetta Brevini, 'Metadata Laws, Journalism And Resistance In Australia' 2017 5 Media and Communication.
17 SERENA FORLATI, 'Reactions To Non-Performance Of Treaties In International Law' 2012 25 Leiden Journal
of International Law.

10ENGLISH AND FRENCH LEGAL SYSTEMS
those countries which have profound knowledge regarding the subject matter and at the same
time familiar with the process of interpretation of such laws.
International law:
The impact of international laws can be traced from the treaties which act as an
international agreement between states. The rules of international law has a binding force on the
Canadian legal structure which has been established after the acceptance of the International
Covenant on Civil and Political Rights by the country thus securing its position to international
standards of human rights protection.

11ENGLISH AND FRENCH LEGAL SYSTEMS
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Elements Of Fair Trial: Position Of The European Court Of Human Rights' 2016 Актуальные
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Round Table
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Cultural Desire For A More Equal Distribution Of Wealth' 2014 14 Analyses of Social Issues
and Public Policy

12ENGLISH AND FRENCH LEGAL SYSTEMS
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