By Ryan Arias ‘28

Overview of the Country

France is a large country located in Western Europe with a population of 67 to 68 million people. Its capital is Paris, the city of love. The country’s government is styled as a unitary, semi-presidential republic, officially in the Fifth Republic since 1958. France has a complex history regarding its government, including monarchy, a revolution in 1789, and Napoleon’s empire. The French Republic is founded on the motto: “Liberté, Égalité, Fraternité”, which can be found in Article 1 of the country’s 1958 Constitution. The Constitution goes on to state that “France shall be an indivisible, secular, democratic and social Republic” guaranteeing “equality of all citizens before the law, without distinction of origin, race or religion.” France’s current laws and institutions have been shaped by the Revolution and Napoleonic codification.

The Legal System

France operates under a civil law system, which is heavily codified through comprehensive statutes. The foundation of this system, the Napoleonic Civil Code of 1804, remains in force today, though it has undergone many amendments since. French law heavily relies on written codes and legislation as opposed to case law. The legal system emphasizes statutes as the primary source of law, with courts serving to interpret and apply these code statutes, but don’t create precedent in the way that common-law judges do. Judges play an active role in gathering evidence and investing cases, primarily in criminal matters. 

France utilizes a dual court system, maintaining two parallel branches of courts. Ordinary judicial courts, known as “ordre judiciaire”, are responsible for administering private law disputes and criminal cases. This stands in contrast to administrative courts, or “ordre administratif”, which handle disputes involving state or public bodies. There is also a special “Tribunal des conflits” that serves to resolve jurisdictional conflicts between the two orders. The country’s “Supreme Court”, or “Cour de Cassation” represents the highest court for civil and criminal appeals, as it does not “re-try” cases, but rather ensures that there is a uniform application of law. The Conseil d’État is the highest form of administrative court in France, which also serves as an advisory body to the government. The Conseil Constitutionnel (Constitutional Council), reviews legislation for constitutionality and electoral disputes. The Cour des comptes (audit court) and many various specialized tribunals also function as institutions. France’s court hierarchy and jurisdiction can be organized in three levels. First-instance courts, appellate courts, and the Cour de Cassation. In France, civil cases begin in the tribunal judiciaire, or specialized court (such as commercial or labor), while criminal misdemeanors are tied to the tribunal correctionnel or tribunal de police. Felonies are tried before a Cour d’assises, meaning with jury. In a similar way, administrative cases begin in a tribunal administratif, appeal to a cour administrative d’appel, and end in the Conseil ​​d’État.

Sources of Law

At the top of the hierarchy of norms in France stands the 1958 Constitution. The provisions of the Constitution (including the 1789 Declaration and the preamble of the 1946 Constitution) are supreme and prevail over others. Then, international treaties and law of the European Union follow (Article 55 of the Constitution gives priority to treaties and EU law). Then comes national law in the form of laws and Codes (for example, the Civil Code, Penal Code, Commercial Code, Code of Civil Procedure, etc.). The executive body enacts decrees or regulations within the ambit established by law. Judicial decisions do not create binding law, as there is no doctrine of precedent, but generally lower courts will follow the interpretation of judicial decisions of higher courts. In addition, over time, higher court jurisprudence constante (from the Court of Cassation or the Conseil d’État) will establish the interpretation of statutes.

France’s sources of law begin with the Constitution of the 1958 Fifth Republic and its Preamble, which incorporates both the 1789 Declaration and the 1946 Preamble, making them both enforceable constitutional principles. Sitting below this foundation are the country’s statutes and codes, where laws passed by Parliament are codified into texts that govern most areas of France’s legal life. These statutes are supplemented by executive regulations and decrees including décrets and arrêtés, which fill in the details of how laws are implemented as authorized by their statutes. France is also bound by international and European Union law, including treaties like the European Convention of Human Rights and United Nations conventions, as well as regulations and directives set by the EU, which at times can override domestic legislation. While case law is not considered to be a formal source of law in French civil law tradition, the decisions of high courts, such as the Cour de Cassation and the Conseil d’État, carry a lot of persuasive authority in shaping how many statutes and regulations are interpreted and applied to the country’s citizens.

Rights and Liberties of Citizens

French citizens have extensive civil and political rights enshrined in the Constitution and other international obligations. Among these rights, some of the main values include liberty of expression, association, and religion (all subject to the principle of laïcité, or secularism). Article 1 of the Constitution states that "All French citizens are equal in law, regardless of their origin, race, or religion," etc. Other fundamental rights include due process, privacy, property, and social rights (health, education, etc.) stated in the preamble of the Constitution. The death penalty was abolished in France in 1981 and freedom of the press was established under the Law of 1881. France is a member of the Council of Europe, and the EU, and is subject to the European Convention on Human Rights and the EU Charter of Fundamental Rights, giving individuals the ability to file a petition against France in the European Court of Human Rights.

Rights can be restricted by law for reasons of public order or equality. For instance, speech that incites hatred or questions the Holocaust is outlawed. Strict secularism laws disallow particular religious symbols in public schools or for public officials. The Constitutional Council and courts assess laws to test for compliance with fundamental liberties (for instance, in 1971 it accepted the rights in the 1789 Declaration as having constitutional significance).

Notable Historical Developments

France is notable for its many instances of historical development in regards to its government. Beginning in 1789 to 1790, the French Revolution enacted the abolition of feudalism and adopted the Déclaration des Droits de l’Homme et du Citoyen (the rights of man and citizen). The revolutionary laws adopted in 1790 separated judicial authority from administrative authority. In 1799 (An VIII), The Conseil d’État was created under the Constitution of the Year VIII (December 13, 1799). Initially its only purpose was to advise the executive, it later became the highest administrative court. 1804 marks the beginning of the Napoleonic Civil Code, enacted on March 21, 1804. The code served to centralize private law, and remains the foundation of French civil law today, which influenced countries other than France.

Moving on to the 1900s, reforms gradually transformed the Conseil d’État into a genuine court (1872 delegation of judicial authority, 1889 Cadot decision establishing that the theory of le juge ministre is no longer valid). Other codes, such as the Code Pénal in 1810 and the Code de Procédure Civile in 1807, helped establish solidified codification. In 1946, the constitution of the Fourth Republic expanded social and economic rights (welfare guarantees) in its Preamble. 1958 introduced the passing of the current Constitution of the Fifth Republic, which empowered the presidency and gave the power of constitutional review of laws to the newly created the Conseil Constitutionnel. In 1971 the Constitutional Council in a landmark decision provided that the freedoms guaranteed in the 1789 Declaration and the Preamble of the 1946 constitution possessed constitutional value. This decision turned many civil liberties into legally protected rights. Finally, 2008 marks the year an amendment was introduced: the Question Prioritaire de Constitutionnalité, meaning priority constitutional question. This allowed individuals in ongoing cases to challenge the constitutionality of laws already in force.

Criminal Justice System

France’s sources of law are organized in a clear hierarchy, beginning with the Constitution of the 1958 Fifth Republic and its Preamble, which incorporates both the 1789 Declaration of the Rights of Man and Citizen and the 1946 Preamble, making them enforceable constitutional principles. Below this foundation are statutes and codes, where laws passed by Parliament are codified into comprehensive texts that govern most areas of legal life. These statutes are supplemented by executive regulations and decrees, such as décrets and arrêtés, which fill in the details of how laws are to be implemented. France is also bound by international and European Union law, including treaties like the European Convention on Human Rights and United Nations conventions, as well as EU regulations and directives, which may in some cases override domestic legislation. Finally, while case law is not considered a formal source of law in the French civil law tradition, decisions of high courts such as the Cour de Cassation and the Conseil d’État carry significant persuasive authority in shaping how statutes and regulations are interpreted and applied.

Compared with adversarial systems, France’s criminal law takes a distinct approach by classifying offenses into contraventions (minor infractions), délits (intermediate offenses), and crimes (serious felonies). The structure determines which courts are involved, and the consequence penalties available. Contraventions are usually resolved in police courts and result in fines or minor administrative sanctions, while délits, such as theft or assault, would be tried in correctional courts and could lead to short prison terms or substantial fines. Crimes, such as homicide or rape, are handled by the cour d’assises and may carry a longer imprisonment (up to life sentences). Outside of incarceration, French judges will often use suspended sentences (sursis), where a prison term is postponed on the condition of good behavior or a probationary supervision. The system also favors alternative sanctions, such as community service or mandatory treatment programs to reduce the reliance on prison and to encourage rehabilitation. Courts may impose accessory penalties, such as loss of civil right or confiscation of assets, which extend the impact of a conviction beyond the principal punishment.

In regards to criminal procedure, investigations can involve a juge d’instruction, or investigating judge who gathers evidence in serious cases. Prosecution is conducted by the Ministère public (procureur). Ordinary crimes are typically tried by panels of career judges. For crimes involving murder, a Cour d’assises is convened. The Cour d’assises includes six citizen jurors, along with three professional judges, one being the president and the others serving as assessors. This was previously nine jurors, but changes reduced it down to six. Both the accused and the defense have the right to counsel and the ability to challenge jurors. In the trial process, a person indicted for a crime faces trial before the Cour d’assises. For délits, the tribunal correctionnel (a court of three judges) will try the case. An appeal from a judgment is typically to the nearest cour d’appel. Finally, the Cour de Cassation can review the points of law from any appeal made. In addition, there are also procedures such as a “comparution immédiate” (immediate appearance), which allows for a quick trial in certain cases. The French system presumes innocence and allows appeals as well as judicial review for legality.

Civil Law System

Civil law in France addresses disputes between private parties (individuals or entities) which arise in matters such as contracts, torts, family law, succession and inheritance, and property. Civil cases are heard in the ordinary course by civil courts, namely the tribunal judiciaire and tribunal de proximité, for cases of general nature. Then there are specialized tribunals (e.g. commercial courts, labor tribunals) to hear matters of specific nature. The judge (or judge(s)) controls the case, and often examines the evidence and questions the parties for the case (known as inquisitorial style). There are no jury trials in ordinary civil disputes. Civil procedure is outlined in the Code of Civil Procedure. Typical remedies are to receive monetary damages or an order for specific performance of the contract rather than punishment. Civil cases also proceed with appeals to cours d’appel and to the Cour de Cassation as in all cases for points of law.

Unlike criminal cases, however, civil litigants, not the state, file the pleadings, and the standard of proof is "balance of probabilities" (preponderance of the evidence). This standard of proof is considerably lower than in criminal cases, although common in many countries' criminal systems.

French vs. U.S. Legal Systems

France’s legal system differs from the United States in many ways. Beginning with the country’s legal tradition: France uses a civil law system that is based on comprehensive codes, whereas the United States relies on a common law system (highlighted through court-made law and precedent). In addition, French judges follow statutes while U.S. judges rely heavily on case law. The court structure in France has two separate court orders (judicial and administrative), while the U.S. has no split. Judicial and administrative issues go through the same courts, albeit via different branches such as tax courts or certain administrative agencies.

In France, the role of judges and juries also differ. Judges work as career civil servants who actively investigate cases, while U.S. judges (often appointed or sometimes elected) can act mainly as neutral referees in an adversarial process. In France, only in the most serious criminal cases (such as murder), are juries involved, whereas the United States uses juries often in criminal trials (and many civil trials in state courts). The concept of Constitutional Review also has some differences, as France's Constitutional Council reviews laws before promulgation and via the QPC procedure, while U.S. courts, including the U.S. Supreme Court, invalidate laws after they have been enacted on an ad hoc basis. In France, the Cour de Cassation does not determine whether a statute is constitutional (only the council does), while the U.S. Supreme Court regularly nullifies law that is contrary to the U.S. Constitution rights. The U.S. is a federal system with laws and courts at the state level, while France is (essentially) a unitary state with one national legal system (aside from localized customary laws in the overseas territories).

French law emphasizes collective values such as laïcité, or secularism, and equality before the law (Article 1), while U.S. law privileges individual liberties and individual freedom of religion. For instance, France has a ban on religious symbols in state contexts, which has no parallel in the U.S. system. In addition, France abolished the death penalty in 1981, while many states in the U.S. continue to utilize the death penalty in some instances. In regards to legal education and profession, France has lawyers and magistrates on a career-track system, whereas U.S. lawyers (after obtaining a J.D.) become judges after time as a lawyer in private practice. Overall, France is a code-centered and judge-driven system that contrasts heavily with the United States’ basis of precedent and jury trials. These fundamental differences create drastic changes that affect procedure, rights, and the role of courts in governance.

Ryan Arias is a sophomore majoring in finance, political science, and philosophy.

Sources

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