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Dr Myra Williamson Associate Professor of Law

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1 LLM Comparative Legal Systems: Courts, lawyers and judges France, UK, US and Kuwait
Dr Myra Williamson Associate Professor of Law Kuwait International Law School Spring 2015 Slideshow #3

2 Courts, lawyers and judges: overview
In the next 3-4 lectures, we will compare some issues regarding courts, lawyers and judges in: France – a civil legal system [slides] UK – a common law legal system [slides] US – a common law legal system [your own reading/Guest] Kuwait – a mixed legal system (civil/Islamic; civil/Islamic/common law; or civil/Islamic/custmary depending on which classification you prefer) – [your own reading/class discussion]

3 Focus We will look at issues such as:
What does the court hierarchy look like? What are the main divisions in each jurisdiction? How do judges work? How are they appointed and removed? What sort of role do judges have? How are they regarded? What sort of decisions do judges write? Are they bound by precedent (stare decisis)? How do lawyers work and what is their relationship with judges?

4 Key questions What are the main differences & similarities between the court systems in these jurisdictions? What are the main differences & similarities between the way that lawyers practice and the way that judges operate in these jurisdictions? Is France representative of all civil law jurisdictions? How does France compare with Kuwait, another civil law jurisdiction? Is the UK representative of all common law jurisdictions? How does the UK compare with the US, another common law jurisdiction? Are classifications into legal families useful in this area? How does the common law compare with the civil law in this area?

5 Timetable Mon 2 March: France Wed 4 March: France/UK? time permitting
Mon 9 March: UK/US Wed 11 March: US - Guest : US diplomat will deliver a lecture, followed by Q and A Mon 16 & Wednesday 18 March: I will probably be away. Please use the class time to prepare for the mid-term Mon 23: review Wed 25: Mid-term exam on all material covered in class up until and including Mon 23

6 Some Reading Chapter 9 from Zweigert and Kotz “Courts and Lawyers in France” Introduction to Comparative Law [handout] Chapter 15 from Zweigert and Kotz “Courts and Lawyers in England” in Introduction to Comparative Law [handout] Chapter 1 from Glanville Williams Learning the Law [handout] on the UK legal system Chris Arnold’s article in the CM Chapter VI ‘Judges’ from Merryman and Perez-Perdomo The Civil Law Tradition [handout] Other books in the library are useful and relevant – check out the books in the library Selected websites (see below)

7 Courts, judges & lawyers in France

8 Sources For an excellent source of information on French courts: see Ministry of Justice The following slides are a basic outline ONLY Please supplement them with your own reading

9 France: 1. COURTS France has a 3-tier system
Jurisdiction is divided into: Courts of first instance Appeal courts Courts of last resort The judicial system is divided into two branches: Ordinary courts (they handle civil and criminal cases) Administrative courts (they handle complaints involving the government)



12 Courts of last resort What is “a court of last resort”? Discuss
France arguably has 4 courts of last resort: 1. Court of Cassation (Cour de Cassation) 2. Council of State (Conseil d'État) (administrative disputes) 3. Jurisdictional Disputes Court (Tribunal des Conflits) which decides conflicts of jurisdiction In cases where there appears to be concurrent jurisdiction or a conflict of laws between the judicial and administrative courts, whether both retain jurisdiction ("positive dispute") or decline jurisdiction ("negative dispute"), the Jurisdictional Disputes Court decides the issue. The Court is composed of 4 members from both senior courts and occasionally, to break a tie, the justice minister who, if present, presides. 4. Constitutional Council: Constitutional review lies with this body; it can strike down any law that it deems unconstitutional

13 France - 1. COURTS Highest court = Court of Cassation
Established in 1790 Quash – casser Cour de cassation = Quashing court It originated from the French revolution: reflects a distrust of judicial legal development & a desire to constrain the judges Every decision of a French court is liable to attack before the Court of Cassation, as long as other remedies are not available It’s the court of last resort in all civil and criminal cases It does not have the power to review constitutional cases – that’s for the Constitutional Council It reviews only on points of law – not on fact and no new evidence is admissable It is NOT the only court of last resort: note that cases involving government bodies, local authorities or the central govt will have to go to the administrative courts, of which the court of last resort is the “Council of State”

14 Court of Cassation

15 Court of Cassation Its purpose is to harmonize case law across the Republic and ensure texts are interpreted in the same way across the country: It only rules on whether the lower court has correctly applied the law – it doesn’t rule on the dispute which is at the heart of a decision, but on the decision itself (c.f. Council of State which can quash and then render its own decisions if the circumstances of justice require it)

16 Court of Cassation continued…
It has the power only to quash (set aside) the lower court’s judgment – not to render its own judgment: “…the Court of Cassation cannot itself render a decision on the merits, but can only quash the decision under attack and remit the matter for rehearing to another court of the same level….the [lower] court is not bound to follow the view of the Court of Cassation: if it refuses to do so and this second judgment is brought to the Court of Cassation, the combined chambers of the court of Cassation decide the matter. If the second decision is quashed, the matter is remitted to a third court which is then bound to follow the view of the law laid down by the Court of Cassation” Zweigert and Kotz, p120

17 Court of Cassation It has 6 chambers/divisions:
First Civil Division (family, wills, custody, contracts) Second Civil Division (divorce, torts, electoral issues) Third Civil Division (land court, city planning, leases, real estate) Commercial Division (company, bankruptcy, business, banking, IP) Labour Division (employment disputes) Criminal Division (all criminal cases) Each chamber has at least 15 judges but only 7 have to be present So in the whole Court of Cassation there are about 120 judges The Court was established in 1790 – it sits in the Hall of Justice in central Paris The Court of Cassation might sit with a temporary bench – it can sit as a Full Court where the decision may overturn accepted case law or if it’s a sensitive issue or it can sit as Mixed Division (with a judge from at least 3 chambers) If it sits in Full Court/Plenary, a total of 19 judges sit

18 Court of Cassation’s judgments
Its judgments are “characteristic of the the particular style of French legal thought” Every decision of a French court consists of one long sentence (see Zweigert and Kotz at 122) There is no section of the judgment devoted to the facts of the case No reference to the history of the litigation No reference to reasoning Usually no reference to previous decisions made by itself of any other court It’s very short – no more than 4-5 pages – sometimes no more than a few lines long! They are marked by ‘polished elegance, formal clarity and stylistic refinement…however, they seem to be frozen in a pedantic ritual of empty formalism, inappropriate to the uniqueness of the facts of life behind the case, which indeed can often only be guessed at” Zweigert and Kotz at 123

19 Court system in France Civil matters are decided at first instance by a single judge in the tribunaux d’instance of which there are 471 They have a criminal division (the Police Court) which hears minor criminal matters, traffic cases They can hear civil cases whose monetary value is up to 10,000 euros Testimony is by oral argument and legal representation is not compulsory

20 Court of Appeal All appeals from the ‘courts of 1st intance’ go to the Court of Appeal (cours d’appel) regardless of where the dispute began The principle of unified jurisdiction applies This makes justice in France ‘very centralized’ – Zweigert and Kotz at The Court of Appeal has divisions: Social security Business General civil Criminal It sits with 3 judges – they often specialise in particular areas of law It re-examines all the factual and legal aspects of the case Parties must be represented by an avoue According to Zweigert and Jotz, the Court of Appeal of Paris is especially important because its catchment area includes a fifth of the population Its judges have higher prestige and pay than those elsewhere

21 France – 2. JUDGES In France, judges are considered civil servants
Only French citizens are able to serve as judges They are career judges - they opt for a judicial career early in life – they are appointed after passing the necessary exams They are guaranteed complete independence – they cannot be removed or promoted against their will Each division of the Court of Cassation is presided over by a judge called the Presiding Judge or in French ‘president’ Judges in France’s Court of Cassation are appointed by Presidential decree acting on a proposal of the Higher Judicial Council – they are usually selected from the judiciary but some are law academics or lawyers in the Council of State or Court of Cassation

22 France: 2. JUDGES French courts are presided over by Juges (Judges) also known as  Magistrats (magistrates).  Magistrats = highly qualified professionals, almost all of whom have graduated from the postgraduate School of Magistrature in Bordeaux (see next slide) A French Magistrat is not the same as a Magistrate in the English legal system (in England, a Magistrate is usually a law person who presides over the criminal courts of first instance). Criminal court proceedings can be  overseen by a juge d'instruction. The judge who is appointed to the case is in charge of preparing the case and assessing whether it should come to court (see separate slide on the inquisitorial v adverserial system)  In court, the judge or judges arbtitrate between the the prosecution and the defence, both of which are generally represented by their lawyers, or avocats. The French judicial system does not have recourse to juries except in assize courts. Assize courts are for the most serious criminal offences only. It can sit as a court of first instance (with 3 judges and 9 jurors) or as a court of appeal (3 judges) Source: Source:

23 School for judges! In France there is a school for judges – its called the French National School for the Judiciary (École nationale de la magistrature or ENM) It’s a post-graduate school where French judges and prosecutors are trained Its located in Bordeaux and it has premises in Paris A French citizen (it only accepts French citizens) who wants to become a judge must complete a 3-year law degree, then a 2-years Masters before applying to enter the School for the Judiciary Here’s the homepage to read more: They also offer training to foreign judges from around the world who have an LLM and a working knowledge of French This is all very strange to someone from the common law legal system! In the common law, a lawyer cannot ‘choose’ a career as a judge. They may be selected after practicing law for a minimum number of years (often 7).

24 Judges - differences between civil and common law?
Unlike in the US and the UK, French judges can hardly ever ‘make a name for themselves’ They are civil servants and their personality is not relevant to their decisions They are not ‘culture heroes’ – in fact, ordinary people and lawyers alike hardly know their names This is different in the common law – in the UK and the US judges often have a public profile and their judgments often reflect their personal style In the UK and even more in the US, judges have distinct and well-known views – they often give public lectures The public often debate their judgments It can be argued that the judge in the common law does make law – whereas the judge in the civil law has been a job of simply interpreting the codes: this is a long-standing, historical distinction See the book by Merryman, chapter on Judges at 34-38

25 France. 3- LAWYERS Prior to 1971, France had three main types of lawyers: There was an avocat (presents the facts and law to the court) – like a barrister in the UK There was an avoué (prepares all the documents in the case) like a solicitor in the UK There was a conseil juridique (chamber-counselor - they could give legal advice even though not lawyers – gave advice to businesses, tax advice, international affairs) Since reforms of 1971 and 1990, the distinction between avoue and avocat exists now only at the appellate court level In 1990, a law merged the professions of avocat and conseil juridique

26 The most prized ‘legal virtues’?
If we look at what is most prized in the lawyer or judge, we might gain more insights into their legal systems: “In France the lawyer most often in the public eye is the avocat with his brilliant oratory and his special prestige” – Zweigert and Kotz at 129 The French lawyer is seen as someone who fights for the rights of individuals Legal virtues of the French lawyer/judge – clarity, brevity, eloquence, style, effect, form, no time for pedantry, no urge to be right in trivia irrelevant to the solution of actual problems (Z & K, at 130) Contrast with the legal virtues of the German lawyer/judge who ‘willingly dons the cloak of learning and is eager to widen his knowledge’ Compare the judgments of French and German courts:” the German superior court gives reasons which are wide-ranging and loaded with citations like a textbook, while the French Court of Cassation goes in for lapidary ‘whereas’ clauses” (Z & K at 130)

27 Inquisitorial v adversarial
Many civil law legal systems are described as ‘inquisitorial’ whereas common law are often described as ‘adversarial’ Inquisitorial = judges play an active part in the trial, they essentially conduct a public investigation of a crime, they can question witnesses, interrogate suspects, declare the verdict and decide on the penalty Adversarial = the judge acts as an impartial referee between the two sides to the case; he/she does not question witnesses or suspects but listens to the arguments from both sides; if there is a jury, it makes findings of fact; the judge makes findings on the law; the judge and jury have no power to make their own inquiries

28 Inquisitorial v adversarial in France…
The main feature of the inquisitorial system in France is the function of the examining or investigating judge (juge d’instruction) The examining judge conducts investigations into serious crimes or complex inquiries As members of the judiciary, s/he is independent and outside the province of the executive branch, and therefore separate from the Office of Public Prosecutions which is supervised by the Minister of Justice. “Despite high media attention and frequent TV portrayals, examining judges are actually active in only a small minority of cases. In 2005, there were 1.1 million criminal rulings in France, while only 33,000 new cases were investigated by judges.[2] The vast majority of cases are therefore investigated directly by law enforcement agencies…” Source:

29 Summary of inquisitorial v adversarial
Although the ‘inquisitorial’ aspect of the French (and other civil law) legal system is often contrasted with the ‘adversarial’ or ‘accusatorial’ system used in the UK, US and other common law systems, this difference can be overdrawn Some courts in common law countries (especially tribunals at the lowest levels) sometimes adopt an inquisitorial mode To read more, here is a god introductory source:

30 Extra sources on French legal system
On the Court of Cassation (available in English and Arabic) see Cornell – French law in action: Levin College of Law, University of Florida, Comparative Law notes

31 Some comparisons and some links to further information…

32 PRECEDENT It’s commonly stated that the common law is built on the doctrine of precedent or binding precedent or in Latin stare decisis It means that like cases shall be decided alike Lower courts are bound by cases decided by higher courts Courts at the same level stand by and follow their own earlier decisions Later courts are bound by the decisions made before them The highest court can depart from its own precedent But in the civil law legal systems, the highest courts (eg. French Court of Cassation) does not usually refer to previous decisions Some videos of interest: The Common law: The role of precedent LLB Weekend University of London International Programme (52 mins)

Note that although precedent is usually seen as a hallmark of the common law systems, there is some evidence of it in the civ aw systems too For example, the Court of Cassation in France has the job of ensuring that the body of case law is consistent There is a similar principle to stare decisis in the civil law – its called jurisprudence constante Jurisprudence constante is a legal doctrine according to which a long series of previous decisions applying a particular rule is very important and may be determinative in subsequent cases. This doctrine is recognised in most civil law jurisdictions, in the civil law of Louisiana for example Source:

The rule of law applied in the jurisprudence constante directly compares with stare decisis. The main difference is this: “a single court decision can provide sufficient foundation for stare decisis, however, "a series of adjudicated cases, all in accord, form the basis for jurisprudence constante” Also, the Louisiana Court of Appeals has explicitly noted that jurisprudence constante is merely a secondary source of law, which cannot be authoritative and does not rise to the level of stare decisis. Source: Royal v. Cook,, 984 So.2d 156 (La. Ct. App. 2008) as cited on

35 Civil v common law generally
Here’s an audio-only recording discussing the differences and similarities between the civil law and common law systems generally Have a listen to these experts discuss this topic

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