1. Comparative Legal Systems: Courts, lawyers and judges
Dr Myra Williamson
Associate Professor of Law
Kuwait International Law School
Spring 2014

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
UK – a common law legal system
US– a common law legal system
Kuwait – a civil legal system
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?

3. Essential questions
What are the main differences and similarities between the court systems in these jurisdictions?
What are the main differences and 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?
If I am going to compare something in 2 legal systems, how do I go about it? Should I explain A, explain B, then draw out the similarities and differences? Is there more than one way to do a comparative analysis?

4. Timetable Monday 3rd March: Wednesday 5th March: Monday 10th March:
France (we may delve into the UK, time permitting)
Wednesday 5th March:
UK (US time permitting)
Monday 10th March:
Guest - Suriya Jayanti, US diplomat in Kuwait
Some aspects of the US legal system (with some comparisons with the EU)
Wednesday 12th March:
compare France, UK, US and Kuwait – wrap up

5. 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]
Selected websites (see slideshow)

6. Aspects to focus upon
Courts
Judges
Lawyers
Precedent
Other

7. Courts and lawyers in france

8. France: 1. COURTS France has a 3-tier system
Jurisdiction is divided into:
Courts of first instance
Appeal courts
Courts of last resort
At the basic level courts are divided into:
Ordinary courts (they handle civil and criminal cases)
Administrative courts (they handle complaints involving the government)

9. 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”

11. Courts of last resort 1. Court of Cassation (Cour de Cassation)
2. Council of State (Conseil d'État) (administrative disputes)
In addition, there are two other important courts:
A. 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.
B. Constitutional Council: Constitutional review lies with this body; it can strike down any law that it deems unconstitutional

13. 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

14. 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

15. 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 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
The decision to sit in Full Court is made by the President or by the division to which the appeal is referred
It hears appeals from the assize courts and courts of appeal - it has no power to refuse to hear a criminal case

16. Court of Cassation

17. 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

18. 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

19. 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

20. 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…

21. 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:

22. 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 ender 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! Common law judges do not go to a school for judges!

23. 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
The public often debate their judgments
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

24. What does a French lawyer look like? Olivier Maurice

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. Courts and lawyers in England

32. “The UK” The UK means the United Kingdom
The UK has 3 separate legal systems: one for England and Wales, one for Scotland and one for Northern Ireland
The Scottish legal system is very different to that of England and Wales – it is considered a ‘mixed system’ of common and civil law
When England, Scotland and Wales are referred to together its called “Great Britain”; when Northern Ireland is added its called the “United Kingdom”
Most of these slides refer to the law of England and Wales – usually just called “England”
But note that the UK Supreme Court is the court of last resort for some cases in Scotland and Northern Ireland, too
To read about the 3 branches of government click here:

33. England
Supreme Court is the highest court (this was changed in 2009 – formerly the House of Lords was the highest court but this was changed to improve the ‘separation of powers’)
Please note that the reading from Zweigert and Kotz should be read, bearing in mind that the law was CHANGED by a statute assed in 2005, that came into effect in 2009 so that the House of Lords IS NOT the highest court anymore, now it is the Supreme Court
How Does Britain Work? The Justice System (7 mins 56 sec) :

34. England – Courts hierarchy
Source:
Perhaps the European Court of Human Rights should be placed here above the Supreme Court

35. Source:

36. England. 1. COURTS
In England and Wales, civil and criminal courts are distinct
Note that in this context, ‘civil’ refers to a wrongful act that may give rise to civil proceedings (eg a breach of contract or negligence) whereas ‘criminal’ refers to a wrongful act which may give rise to criminal proceedings (eg murder, theft etc)
Magistrates courts are mainly the 1st courts for criminal matters
County courts are mainly the 1st courts for civil matters
Magistrates courts are staffed by “Justices of the Peace” (JPs) who are lay people, with no legal training, sitting with a clerk (clerks to the justices: advise on matters of law, they are legally qualified, usually assisted by assistant clerks who are unqualified)
Civil matters, for example, pub licensing, can also be dealt with by magistrates. More complex cases or those involving large amounts of money will appear at the High Court; the vast majority of civil cases take place in the County Courts.
County courts are staffed by a single judge with either a Circuit Judge or a District Judge
Read more here

37. England. Courts - appeals
Criminal cases start in the Magistrates (sometimes in the Crown) court – appeals from the Crown Court will go to the High Court and maybe to the Court of Appeal and maybe even to the Supreme Court
Civil cases usually start in the county court – appeals are to the High Court, Court of Appeal and Supreme Court
The Court of Appeal is one court with 2 divisions (civil and criminal): compare with France
This pdf shows the path of appeals:
Note that more appeals are available than in the French system!
See pp6-17 of Glanvile Williams Learning the Law

38. England. Courts – how many appeals?
When an appeal is taken to the Court of Appeal (either from the High Court or from a Divisonal Court) a further appeal lies (with permission) to the Supreme Court
Why two appeals should be allowed can be explained only by history
Historically, the second appeal was going to be abolished in 1873 but the Conservative party took power and refused to allow the removal of the House of Lords as the ultimate judicial body (probably fearing that it might lead to the removal of the HL as a legislative body)
The majority seem to support the status quo: the Court of Appeal is too busy to give ‘detached reflection’ to really important questions – its good to give that job to a higher court (see Glanville Williams at 9-10)

39. You fill in the blanks!
Rather than me write a whole lot of notes about the various aspects of the UK legal system, try to take your own notes on the various courts
Here’s a website that’s useful if the readings are not enough:
Take a look through it – it has a wealth of information including diagrams and videos

40. House of Lords  Supreme Court
Formerly the House of Lords was the final court in Englahd
The House of Lords
Until October 2009, the House of Lords was the highest court in the United Kingdom.
Judges appointed to sit in the House of Lords were life peers, entitled to take part in the debate and enactment of Government legislation - although in practice, they rarely did so.
Their official title was Lords of Appeal in Ordinary, however they were usually known as Law Lords. There were 12 Law Lords, and their role was to hear cases from the lower courts, most often the Court of Appeal.
In recent years, there had been mounting calls for the creation of a new free–standing Supreme Court separating the highest appeal court from the second house of Parliament, and removing the Lords of Appeal in Ordinary from the legislature.
On 12 June 2003 the Government announced its intention to do so and the new Supreme Court opened for business in October 2009.
Source:

41. THE SUPREME COURT Supreme Court: What is it?
“The Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.”
Their homepage:
Role: The Supreme Court:
is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland
hears appeals on arguable points of law of general public importance
concentrates on cases of the greatest public and constitutional importance
maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world
8 min video:

42. 2. JUDGES
Judges in the UK are appointed by the Judicial Appointments Commission (JAC) which is a non-departmental, non-political, independent body created on 3 April 2006 as a result of the Constitutional Reform Act 2005
The JAC was set up to create a more accountable and transparent process for judicial appointments
Website:
It selects judges based on merit
The Commission has 15 members:
2 from the legal profession
5 judges
1 tribunal member
1 lay justice
6 lay people (including the Chairman)
Judges are appointed on the basis of criteria:
They have to complete an application form
Some will be invited to take a selection test
Then some will be invited to an interview
Then recommendations are made, based on merit, to the Commissioners
Then the appointments are made by the Lord Chancellor

43. JUDGES – appointment
There is no ‘judicial career’ for judges in England - there is no ‘school for judges
All judges in the UK are appointed by the JAC following an advertisement, application, test and selection procedure
A ‘reasonable length’ of service before appointment is required (5-7 years?)
Usually, only experienced lawyers will be appointed to the bench
No age limits except that retirement of all judges is at the age of 70
It is not a political process (compare with the US)
There is a citizenship requirement: applicants must be a citizen of the UK, Republic of Ireland or a Commonwealth country
See for more info on appointment

44. JUDGES - removal
Either the House of Commons or the House of Lords can petition the Queen to remove a judge of the High Court or Court of Appeal.
The power to do so is placed by 1701 Act of Settlement and is now contained in section 11(3) of the Supreme Court Act 1981.
It has never had to be exercised in England and Wales.
It has in fact only been exercised once, when Sir Jonah Barrington was removed from office as a judge of the Irish High Court of Admiralty in 1830 for corruption: he misappropriated funds due to litigants.
No English High Court or Court of Appeal judge has ever been removed from office under these powers.
Circuit and District Judges can be removed by the Lord Chancellor. However, he can only do so if the Lord Chief Justice agrees. This power has only been exercised twice; once in 1983 when a judge was caught smuggling whisky from Guernsey into England; the other in 2009, for a variety of inappropriate behaviour.
To read more on the removal of judges, visit:

45. LAWYERS In the UK there is a a split bar
Solicitors mainly take instructions from the public and prepare the case for trial
Barristers are advocates who argue the case in court – they cannot take instructions directly from the public
There is a long-running debate over whether this split bar should continue
It doesn’t exist in all common law countries (e.g. in New Zealand all lawyers are admitted to the bar as barristers and solicitors of the High Court of NZ)
Here’s a link to some more info:

46. Some comparisons and some links to further information…

47. JUDGES
Many comparisons could be drawn about judges: how they are appointed/selected, requirements to be considered as a judge, removal/retirement etc
Also we could compare how they are perceived and the job they do; the types of judgments they write, etc
Here’s an interesting paper:

48. 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)

49. PRECEDENT (stare decisis) v JURISPRUDENCE CONSTANTE…
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
Here’s a quote about it:
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:

50. RECEDENT (stare decisis) v JURISPRUDENCE CONSTANTE
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

51. 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

52. UK Supreme Court BBC documentary (1 hour) about the UK’s Supreme Court
They focus on 4 particular Justices and they ask them about their roles, how they decide cases, how they write their judgments
It touches upon many of the things we have discussed in class

53. US v UK courts
Here is a link to a video that features two famous judges, one from the US and one from the UK
Justice Ruth Bader Ginsberg is on the US Supreme Court
Baroness Hale is on the UK Supreme Court
They talk about some differences and similarities between the highest courts in the US and the UK in this video:

54. Conclusion
We can compare civil law v common law in the areas of courts, lawyers and judges
Within each of those areas we can look at specific things – eg. How are judges appointed/removed, the role of the judge, how they are perceived etc…
We can can also compare within the civil law legal systems (eg compare France and Kuwait or France and Germany)
We can compare within the common law (eg compare UK with the US)
It is useful to first describe each system and then to draw out the similarities and differences before making some conclusions