Comparing English And French Legal Systems

“Legal systems are there to determine what will happen when people have disputes. Legal rules are also there so people can order their lives in such a way as to avoid such disputes [1] "

The purpose of this dissertation is to examine how the codified model of French law compares with the case system of English law. It is proposed to draw out the differences between the two systems by looking at the two sections, public law where the constitutional and administrative of both legal systems will be examined, and private law.

When discussing the classifications on legal systems, the French and the English systems are not classified in the same family or group. English law is considered to be in the grouping of common law systems, while French law belongs to the loosely defined civil law systems [2] . However they are both still part of a Western European tradition of law and so distinctiveness should not be exaggerated.

The study of any legal system must include an understanding of the fundamental points in its development. In the French system we need to go as far back as Roman law, and

Chapter 2 - History of French legal system

The code civil 1804 which enacted civil law applying to the whole of the country is not only the heart of private law in France but also the great model for the codes of private law of the whole Romanistic legal family. The code carefully absorbs the results of a long historical development, as well as the known traditional legal institutes from the droit écrit of the south influenced by Roman law and droit coutumier of the north influenced by the German-Frankish customary law. (page74/75 an introduction to comparative law)

The civil code was formally established in 1799 by Napoleon, who had no legal training he

Even though the Napoleonic code was not the first legal code to be established, having other great codes came into force in Central and western Europe at the end of the 18th and the beginning of the 19th centuries [3] but beyond doubt the French code civil is intellectually the most significant and historically the most fertile. It is considered the first successful codification and strongly influenced the law of many other countries [4] 

Only in France was the code the product of a revolutionary movement only in France was there complete congruence between social reality and the idea of society on which the code was based [5] .

The spirit and essentials features of the code civil

In drafting the code civil, the draftsmen were exercised by the question of the proper position of the judge in relation to statue. The doctrine adheres to the principle of the separation of powers that the judge should have no power at all to develop the law and that statues should be so detailed that the judge could apply them quite mechanically. (89) Consequently art 4 code civil (reference) provides without any qualification that if a judge refuses to make a decision on the ground that the law is silent or obscure or inadequate he may be held responsible. (90)

Code civil also avoids the danger of being too detailed. The draftsmen could not foresee and determine all the possible problems which arise and that therefore room must be left for judicial decisions to make the law applicable to unforeseen individual cases and suited to the changing circumstances of society. (90)

History of English Legal System

English law is one of the major European legal systems, Roman law being the other. English law has spread to many other countries, including former English colonies such as, New Zealand, Australia USA, and Canada.

The historical development of the common law of England started before William the Conqueror in 1066. Before this date there was no real national legal system, so the laws were enforced by police and local lords.

The evolving history of English law continued upon the local customs of the Anglo-Saxons, that survived until 1925. After the Norman Conquest there grew up, side by side with the Saxon shire courts, the feudal courts of the barons and the church courts. From the Curia Regis known as the king’s council developed the royal courts, in which they appointed professional judges, which gradually engaged the jurisdictions (legal powers) of the baronial and church courts. By 1250 the royal judges had joined all the various local customs into the system known today as common law. A second system known as equity developed in the Court of Chancery, in which the Lord Chancellor considered petitions.

Between the 17th and 18th century, common law had absorbed the Law Merchant and the international code of mercantile customs. By the 19th century the whole of English law was reformed by legislation where the number of capital offences was greatly reduced then soon abolished. By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent Roman law as a main source of legal system to the continent [6] .

In development of the common law, there were a number of problems in which it operated. There were as follows:- firstly, the common law operated on the basis of stare decisis meaning binding precedent. One of the main criticism of the doctrine this is where the court is bound to follow a previous decision even if the judge disagrees with that previous decision. Having said that there is now today in the modern westernised society mechanisms that exists where a judge can avoid this process today. It can be said in the more antiquated system the common law did not develop properly and there was no leeway in which parties could persuade a judge to change the law, even if it was made obviously in need of change.

Secondly, the common law started by the means of a writ which is a document used by a party to take legal action. There are still used today in certain documents but in a different form, for example, in order to take civil action the claimant must fill out a ‘claim form’. The old common law system the rules stated that if a wrong writ had been chosen or a mistake had been made on the writ , that writ would be classed a void furthermore it could not be amended as it happens today.

Thirdly, the only remedy available to the common law was damages. So in cases such as breach of contract the remedy available was perfectly adequate, however in cases with trespass money would not be adequate as the claimant will want the trespasser to stop and in the old common law the order injunction did not exist like today.

Chapter 3 – Public Law

Public law consists of set legal principles which govern and control the relationship of public authorities such as the state and its emanations [7] . Constitutional law, administrative law, criminal law, and human rights law are all sub-divisions of public law. Traditonally English law wouldn’t recogone the division between private n public law these days it is quite clear what makes private and public law.

Constitutional law

As described by Finer “a constitution resembles a sharp pencil of light which brightly illumantes a limited area of a countrys political life before fading into a penumbra where the features are obscured [8] ". A state’s constitution will differ from state to state. However, each constitution will contain the principle institution of the state, their functions and powers [9] . The rules of a constitutions document are more superior than the rules that make up the legal system. Thus, the constitution consists of those rules of a legal system which regulates the government of a country in which predominantly deals with the relationship between the state and its public authorities, and together deal with the basic right which its citizens have against it, as quoted by Wheare ‘a constitution is used to describe the whole system of government of a country, the collection of rules which establish and regulate or govern the government’ [10] .

The rationale behind each country to have a constitution is to firstly ensure order and stability. Constitutions provide a set of basic ground rules and principles which establish and regulate the governing of the state. Without these fundamental provisions, there would be no structure or organization which would result in chaos. Another justification is to ensure that the government operates by consent and has constitutional and moral legitimacy, and in return for those to respect a constitutional watershed.

Fourth, to have a constitutional limit and control on government.....

And finally, to affirm particular values and goals.....

The main text of the French and English constitution about what each institution entails will be explained below.

English constitution

The constitution of the United Kingdomis described as an ‘unwritten’ and often referred to an ‘uncodified constitution’ as there is no single authoritative document that can be classed as the UNITED KINGDOM’s constitution. However, some rules are written down in an authoritative form, but they are contained in a variety of documents and are often mixed with non-constitutional rules [11] . The situation in the United Kingdomis resembled only in 2 other countries and those are Israel and New Zealand.

The British constitution originates from a variety of sources; the main 3 sources being statues which relates to the structure of the state such as the Act of union 1705 and the Europeans Act 1972, second is case law, and thirdly conventions where the rules of the constitution that cannot be enforced by the courts. They are just as important as statutes but not to be inconsistent with statute law or case law.

There are two basic principles to the English constitutions, the Rule of Law and the Parliamentary supremacy.

The rule of Law and Parliamentary Supremacy

The rule of law is a legal maxim encompassing legal principles that might be considered the foundation of a civilised society [12] . According to AV Dicey [13] the rule of law is one of the key features that distinguished the English constitution from its continental counterparts. He laid out the following 3 principles, everyone is equal before the law; no one can be punished unless they are in clear breach of the law; there is no set of laws which are above the courts.

In all the Acts the parliament supremacy contains are the highest source of British law, it is therefore the supreme law-making body.


The United Kingdomconsists of four distinct entities, which all concentrate in the centre of government so nevertheless it is a unitary state. This is decided fewer than three different functions of government referred to as legislative, executive and judicial are all considered separately.


A single vote of majority would make constitutional change possible as it is not well-established and UKconstitution is based on parliament sovereignty

j.bell,’english law and French law – not so different 1995 clp 63 81-3

French Constitution

In a comparative prospective, the French constitution is written. France has had 15 different constitutions since the first one of 1791 [14] . The current constitution being at the top of the hierarchy of all French sources was masterminded by General De Gaulle knows as the Gaulist Constitutions 1958 [15] .

The constitution also incorporates the rights of man and the principles of national sovereignty as defined in the Declaration of the rights of man and of the Citizen which is confirmed and completed by the Preamble to the constitution of 1946.

The French constitution also includes the environmental chapter 2004. Furthermore, certain fundamental principles recognised by the laws of the republic are also regarded as having a constitutional status e.g. right of the association

The president is chief of state and in control of the executive power. The government is being represented in parliament by the prime minister.


The provisions on the means which a constitution may be amended are of both juridical and political importance and are themselves an exercise of the constitution, where they have the power in spelling out how its own creation may be changed amongst people (states article3 of the 1958 constitution), legislature and executive or between a federation and its components and may express basic values.

An amendment to the constitution can be initiated by the president on a proposal by the prime minister or by members of parliament, however based on both Houses of Parliament approving of the amendment and than having it submitted to a referendum subject to procedure set out in article 89 of the constitution 1958.

However, the amendment can go ahead if both the Natiotional Assembly and the senate agree on the wording of the amendments, which have to be voted by a three-fifth majority.


France is a republic and a unitary constitution. Article 1 of the 1958 Constitutions [16] had been amended to provide that the organisation to be decentralized, and article 72 provides for the collectivities territoiales of the republic, which are the communes, the departments and the regions, all others are created by the law.

In constitutional law the court is not composed solely of lawyers and does not have an adversal procedure. It is an investigation conducted by those knowledgeable constitutional matters with few formal rules of procedure.

Administrative law

Administrative law is concerned with the activities of agencies and government that deals with tribunal, boards or commissions, so it is the law regulating the relationship between the public authorities on the one hand and the individual citizens on the other [17] .

Generally the English law have developed procedures for the judicial review, which are often limited to certain questions of fairness or Wednesbury unreasonableness [18] . When reviewing the powers of administrative decision would be usually established by the statues which are developed by the prerogative writs.

French Law

In administrative law the procedure is more informal and inquisitorial than in private law and less party-driven than in many legal systems. There is almost a sense in which the procedure of the administrative courts is an investigation of which the procedure of the administrative courts is an investigation of administrative shortcomings, rather than litigation between parties.

The composition of administrative courts is also distinctive in that the member especially of the higher courts are not trained a judges but are first and foremost administrators who may move between judicial and administrative tasks.

English Law


Chapter 4 –Private Law

Elements of comparisons will be given out here. The analysis will revolve around the key areas of tort law and contract law. As already stated the private public law distinction does not traditional form part and parcel of English legal theory. This analysis proceeds with on the basis that UK law and in particular law understand the distinction between private law and public law.





Nature of Contract Law

Concept of a contract


There is not much conceptualisation as there in France regarding the nature of a contract, but it is clear that there must normally be agreement such as in the case of Cundy v Lindsay [19] where it was held there could be no contract when the other party was a stranger with whom the first party had never thought of contracting.

In order for a contract to exist in English law there must be the following: agreement; an intention to create legal relations; and consideration (unless the contract is made by deed) (ADD MORE)


In French law, a contract is a type of acte juridique, where Article 1134 of the code civil provides “agreements formed legally take the place of law for those who have made them...." [20] A contract is described under article 1101 of the code civil “is an agreement by which one or several persons commit themselves to one or more others to give, to do , or not to do something" [21] .

There are four conditions that are fundamental for the validity of an agreement where article 1108 of the civil code provides; the consent of the party who commits himself; his capacity to contract; a certain objet (object) which forms the subject matter of the commitment; and finally a lawful case in the obligation. In every contract the objet has a thing which a party requires himself to give or which a party requires himself to do or not to do so.

The objet must still exist and be determined, possible and lawful. However, the obligation cannot have any effect if it without the concept of cause being based on a false cause or an illegal cause. This is because cause is the reason for the making of the contract, and must exist at the time of the contract is made; furthermore, cause in French law is the motive which led a person to enter into a contract. Without cause, an illegal cause, no objet or an objet which does not satisfy all the above conditions would result in nullification of the contract.

Formation of Contracts

An Offer


An offer in English law must be precise and complete as it is to determine whether an agreement exists between the parties such as in the case of Scammell & Nephew Ltd v Ouston [22] . It can be made to an individual or group of people or even globally as in Carcilill v Carbolic Smoke Ball Co [23] where a statement in an advertisement that anyone who used the smoke balls and contracted influenza would receive a payment of £100. Advertisements’ such as catalogues, displays of goods in shops,, circulars, advertisements in auctions are all regarded as an invitation to treat, meaning that if an individual is not willing to implement the terms of their promise but seeking to initiate negotiations then this cannot amount to an offer.

An offer can be terminated at any time before it has been accepted, unless the offeror has either promised to keep it open for particular period of time, but also in return received something value for doing so known as consideration, or a promise is made to pay for the goods.

Having withdrawn an offer, it will not be effective until it has been received by the offeror, such as in the case of Bryne v Van Tienhoven [24] . An offer is considered terminated when it has been rejected, this would include implied rejection when an offeree accepts an offer but as the same time seeks to change the terms of the contract.


In the code civil the concepts of offer and acceptance are not mentioned but there are rules about them having been developed in case law. An offer must be precise and firm, which includes all the elements of the proposed contract. It can be expressed in various ways such as a bank letter setting out rates of return on capital which a customer will receive if he leaves his share portfolio with the bank [25] 

The cour de cassation has held that any offer ma de to public will generally still create a contract once accepted, for example a farm for sale which was advertised in a newspaper was held that it was capable of creating a contract on acceptance, in the absence of any evidence that the advertisement constituted an invitation to treat [26] . This would also be the case even so if the persons accepting it were not the intended recipients [27] . Goods on display in a window or a supermarket will also constitute to an offer provided that the price is displayed, this is explained more in the case of paris [28] where a bottle of lemonade exploded at the checkout before it had been paid for as the offer to sell was accepted when the bottle was placed in the purchaser basket.

In both systems an offer may be express or implied for example raising a hand at auction. Looking at the above the French courts seem to be more willing to classify suggestions as offers. However even if the terms of the proposal are clear and unambiguous are the consequences of treating it as an offer potentially unsatisfactory? This could explain the reluctance to treat advertisements as offers as a number of people may accept but revocation may b difficult.


Acceptance must be unconditional and not be a counter proposal , an agreement in principle only or a partial agreement.


Acceptance is the unconditional agreement of the terms of the offer, so acceptance on different terms would not be classed as an acceptance but considered as a counter-offer, causing the offer to lapse such as in the case of Hyde v Wrench [29] where a counter offer by the purchaser of a lower price prevented him simply accepting the original price subsequently.

In English law the acceptance must usually be communicated by the offeree to the offeror. However in the kind of case where the offeror has publicised their intention to reward anyone who abides with the conditions of the offer, acceptance is the mere performance of the act in question, and where it does not need to be communicated Carlill v Carbolic smoke Ball co [30] .

If the offer states on certain terms of acceptance then it is likely no other means will do, however if such terms are proposed in the offer than any method which is equally will do.

If the acceptance is of word of mouth, it must be heard by the offeror. Moreover, the contract is usually formed at the place and time acceptance was communicated or sometimes communicated in the ordinary business run times.

According to Barry Nicholas [31] there is an important difference between the Common law and the Civil law of commercial practice. His philosophy is generalisation exaggeration but the Civil law is closer to that of Kant (Germany?). This is concerned, not with the economic exchange between the parties but with the exchange of consents and with the moral evaluation of the behaviour of the parties.

A consequence of this commercial orientation of the Common law is that if a choice has to be made between certainty and justice in the individual case, it is likely to be made in favour of certainty.

This preference for certainty is reflected in a different conception of what is meant by agreement. Both systems start from the principle that agreement is necessary in order for a contract to exist.

The Civil lawyer will probably speak of an agreement of wills and the Common lawyer of a meeting of minds, but more to the point both legal systems agree in speaking of an agreement.

Having said that, Barry Nicholas states there is one important contrast. What matters to the Common law is the objective appearance of agreement, whereas the agreement which the Civil looks for is more likely to be a subjective one. Whereas the Civil law will try to establish into the true states of mind of the parties, the Common law will ask what a dispassionate observer would have thought the parties had agreed.

The reason why Common law prefers the objective approach is because the subjective approach leads to uncertainty, moreover the Civil law may correct the excesses of subjectivity by an alternative remedy, for example, to the law of delict, but there is no time this afternoon to pursue that matter.

The difference between the subjective and the objective approach explains why flaws of consent have a large effect in the Civil law, whereas English law allows only a very limited recourse to error.

Again, the Common law has a narrower idea of good faith. The partys should not deceive one another, but there is no obligation to give unrequested information, except in some situations and except of course for consumer contracts.

Tort Law

Tort law is where one has acted tortuously, and where they have breached a duty to another person, in which tort law then regulates the circumstances in which they can either recover compensation for, or prevent an infringement of their rights, unless otherwise stated such as rights arsing as a result of an agreement.

In England it is possible for criminal courts in certain circumstances to award compensation to victims of crimes, in France the victim of a crime may be able to claim compensation in the criminal proceedings as the partie civile (explain).

The English tort of law was created by case law but no there are now some areas which are covered by statute area’s (example). The French law of tort is set out in only 5 articles of the code civil which are articles 1382-1386 although there are also separate statutes covering certain area’s.

There are fundamental matters in both systems in which the law of tort deals with that will be explained below.


The general basis of liability in England is formed by several different combinations of tort being the three different types of trespass; trespass to the person, trespass to the goods and trespass to land; negligence, conversation and public and private nuisance. Negligence is a tort that would only be actionable based on proof of damage and capable of covering of any kind. Also in the tort of negligence there must have been a duty of care owed by the defendant to the claimant where the duty must have been breached in which harm must have resulted. Negligence may have been committed by omission.


Article 1383 of the code civil states:

“all human conduct of any kind which causes harm to another requires the person by whose fault it occurred to redress it. Harm and fault are therefore necessary elements if liability."

The origin of liability is very broad and is extended further by article 1383 which goes on to say:

“everyone is responsible not only for the harm which he has caused by his conduct but also by his negligence or imprudence."


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Chapter 5 – Evaluation

French law is very heavily based on legislation where social change and the importance of government direction in society and the economy has meant that most modern societies have their law-making from legislatures and government. One main distinctive feature of France is that the written legislative rules provide a coherent and self-contained framework for the solution of contemporary social problems which makes it easier for the lawyers to solve cases. Rather than the common law which can be considered as a ‘patch-work quilt’ of legislation provisions that are held together by a thread woven out of general principles and sewn by the judges.

Evaluate the content in your main body... make it like a summary and say things like the French law suggests to do this and that one way, compared to the English law. This would suggest so and so........

Or say the author believes this suggests....

Chapter 6 – Conclusion

It would be wrong to conclude that there are no significant differences between English and French law. The traditions of codification, legal education and judicial decision-making as well as procedure in and out of court all have significant impact on the way a lawyer operates.

Both systems are very much formalist in terms described by Attiyah and Summers [32] . It matters to both the English and the French that the law is clear and certain and therefore predictable, as much as it produces a fair outcome in all individual cases. The legal procedures and decision making of both are clearly rule-based far more than American Law. Furthermore, it can be said that both legal systems are monolithic. {EXPLAIN WHAT DO YOU MEAN BY ‘monolithic’}

French law is profoundly based on legislation. The pace of social change and the importance of government direction in society and the economy change has meant that most modern societies have a large amount of law making from legislatures and government. {State that this pro-codification movement takes place in the UNITED KINGDOMas well and through this in England. E.g. see the codification of fiduciary duties through the rather recent Companies Act 2006}

The distinctive feature of France and a number of continental European countries is the perception that the written legislative rules provide a coherent and self-contained framework for the solution of contemporary social problems. The post revolutionary codes were the first successful attempt and have been replicated with varying success later, rather than the classified common law conception of the law as a patch-work quilt of legislative provisions held together by thread woven out of general principles and sewn by the judges; the French civilian is thought to see the codes as the course of general principles into matters substantive and procedural.

The out come is……..

Question – should i make recommendations to how each of the French and English systems could become better... PRESUMPTIO SIMILITUDINIS