Foundations of the French legal system: history, sources, the Constitution of 1958, the codes, the hierarchy of norms and the rule of law

Before the Revolution France had no single body of private law. The south followed written law inherited from Roman law (*pays de droit écrit*); the north followed regional customs (*coutumes*), which were written down from the fifteenth century (*pays de coutumes*). Royal ordinances and the work of jurists such as Domat and Pothier began to shape a common stock of ideas. The Revolution of 1789 abolished feudal privileges, proclaimed equality before the law and issued the Declaration of the Rights of Man and of the Citizen (1789), with the aim of a single law for all. The task of unifying private law was completed by Napoleon.

The Civil Code spread to Belgium, Luxembourg, Italy, Spain, Latin America, Quebec and many other places, by conquest, imitation and colonisation. In nineteenth-century France the exegetical school treated the Code as complete and the judge as the mouth of the law. Around 1900, jurists such as François Gény argued for free scientific research to fill gaps, and the courts have since developed large parts of the law through interpretation, for example the law of tort (Module 5). Codification continues today in a different spirit. Under the practice of *codification à droit constant*, the government gathers the existing law on a subject into a code without changing it, as in the Labour Code, the Consumer Code, the Intellectual Property Code and the Public Procurement Code, whose articles are marked L for the legislative part (statutes) and R or D for the regulatory part (decrees).

Case law has a particular status. Article 5 of the Civil Code forbids judges to decide cases by general and regulatory rulings: a judge must decide the dispute and may not lay down a rule for future cases. The courts therefore do not follow a strict doctrine of binding precedent. In practice, the decisions of the Court of Cassation and the Council of State, which exist to ensure the uniform interpretation of the law, carry great authority, and lower courts follow them. Their style is short and deductive: a single long sentence beginning ‘*Attendu que*’ or ‘*Considérant que*’ gives the reasoning, and academic notes explain and criticise it. Doctrine is read with a seriousness that has no equivalent in the common law.

The Constitution of 1958 created the Fifth Republic. It was written for General de Gaulle, with Michel Debré as its principal drafter, to replace the unstable parliamentary system of the Fourth Republic by a strong executive. Article 1 declares France an indivisible, secular, democratic and social Republic, which ensures equality before the law of all citizens without distinction of origin, race or religion. Article 3 provides that national sovereignty belongs to the people, who exercise it through their representatives and by referendum. Article 2 makes French the language of the Republic. The Constitution has been amended many times, with major reforms in 1962 (direct election of the President), 2000 (a five-year presidential term), 2003 (decentralisation) and 2008 (the priority question of constitutionality and a stronger Parliament). Modules 2 and 4 explain how its institutions and its rights work.

French lawyers think of the legal order as a pyramid of norms, in which each rule draws its validity from a higher one. A norm that contradicts a higher norm may be annulled or disregarded.

Treaties and European law. Article 55 provides that duly ratified treaties have, from publication, an authority superior to that of statutes, subject, for each agreement, to its application by the other party (reciprocity). In 1975 the Constitutional Council declined to check statutes against treaties; it said that this is a task for ordinary courts (*Décision IVG*). The Court of Cassation held in *Jacques Vabre* (1975) that a treaty prevails even over a later statute, and the Council of State reached the same result for treaties and European law in *Nicolo* (1989). The Council of State also held in *Sarran* (1998) that the Constitution itself remains supreme in the domestic order, so a treaty cannot override it, and has protected a core of French constitutional identity against European law (*Arcelor*, 2007). Directives of the European Union must be transposed by the state, and the Council of State, after first refusing individuals the right to rely on them against individual administrative decisions (*Cohn-Bendit*, 1978), changed its position in *Perreux* (2009).

Legality and the rule of law (*l’État de droit*). The principle of legality requires that the administration act within the law, and that public power have a legal basis: an administrative act contrary to a statute can be annulled. The Declaration of 1789 sets the basics: no one may be accused, arrested or detained except in cases determined by law (Article 7); only strictly necessary penalties may be established by law and no one may be punished except under a law established and promulgated before the offence (Article 8); everyone is presumed innocent until declared guilty (Article 9). Legal certainty (*sécurité juridique*) requires that law be clear, accessible and intelligible, that rules not change so abruptly as to defeat legitimate expectations, and, in general, that statutes not be retroactive in ways that disturb settled situations. The Constitutional Council treats the accessibility and intelligibility of law as an objective of constitutional value, and the Council of State has recognised legal certainty as a general principle that governs the transitional rules for new regulations. Equality before the law (Article 6 of the Declaration and Article 1 of the Constitution) does not require identical treatment: the legislator may treat different situations differently, or depart from equality for a reason of general interest, if the difference in treatment is in proportion to the aim of the law.