What ARE The Differences Between English and Napoleonic Law?

Here in the USA, we have a legal system that derives from English common law…and some features of this system include the right to a jury trial, habeas corpus, and the right against self-incrimination. By contrast, France and amany other nations have a system based on Roman Law, commonly known as Napoleonic…exactly how do the two systems differ? I understand that most criminal trials in France are handled by a panel of judges, instead of a jury. Is Napoleonic justice faste than English/American? Under French law, are you required to give testimony (which might incriminate you).
Finally, we have all seen the circus-like spectacles in the USA, of trials like OJ Simpson, Michael Jackson, and the Menedez bothers…do the French manage to avoid this type of nonsense? Which is the BETTER system for defendents (not the lawyers!)? :cool:

Napoleonic law generally refers to code law, as opposed to common law. At one point in history this meant that most of the law was codified in statutes in code law jurisdictions (like Lousiana), while common law jurisdictions relied on legal decisions to expound on the law. Now the difference has mostly disappeared.

I don’t know much about legal procedure in other countries. So I leave it to others to answer that portion of the question.

Here is a translation of the Napoleonic Code.

BTW: Louisiana and Puerto Rico both have legal systems based on codified law (French and Spanish respectively). I will leave it to the people who actually know what they’re talking about to explain the difference.

My wife was a lawyer in the Dominican Republic, which is based on the Napoleonic system of law – a legacy of their days as part of the French colony of Haiti.

While I don’t have her encyclopedic knowledge of the subject, we’ve had many discussions of the differences in our respective legal systems, so I can lend at least some insight on this.

The basic difference, as suggested above, is the lack of “common law.” This means in practice that prior court decisions have no particular precedential value. In the US, we point to the Supreme Court case Miranda v. Arizona for the authority of the proposition that criminal suspects must be explictly advised of their constitutional rights before their statements may be used as evidence against them. In the DR, the mere fact that the highest court in the land decided that Miranda’s conviction was invalaid because his rights weren’t read to him would be good news for Miranda, but would have absolutely nothing to do with the next guy. A different panel of judges could decide that in that case, it didn’t matter.

In the DR, the judges look only to the written law - the code. Every decision they make applies the law to the facts of the case… but they are not guided by how previous courts have applied the law; they independently decide how the law applies to the facts.

There are procedural differences as well; I’m not sure how many of these are common to civil code jurisdictions and how many are simply rules in the DR. For example, at trial, all questions to witnesses are posed by the judges. The prosecutor, the defense lawyer, or in a civil trial the lawyers for the plaintiff and defendant may propose questions, but they do so to the judge, who then asks the witness.

Appeals in the US are not re-trials. An appeals court accepts the factual findings of the trial court (as long as such findings are supported by evidence in the record) but reviews afresh the conclusions of law. In the DR, an appeal amounts to a new trial: witnesses may be re-heard, new findings of fact made, and no particular deference is due to the lower court’s decision.

In the US, a criminal defendant is entitled to trial by jury. The jury acts as the finder of fact, and the judge’s role is to make findings of law. In the DR, there is no jury – every trial is a bench trial, with the judge acting as a finder of fact and law. In appellate settings, a panel of judges acts in those roles.

In the US, warrants for arrest and search must be issued by the judiciary. The police or district attorney must present a “neutral, detached magistrate” with sufficient credible facts to establish probable cause for a search or arrest. In the DR, while the standard is roughly the same, the power lies with the District Attorney – there is no judicial review of search and arrest warrants. On the other hand, there is a strong restriction against nighttime search and arrest warrants, with only the most egregious cases eligible for an exception.

  • Rick

Thanks. That was most enlightening.

I’m in a bit of a rush, so can’t contribute in detail, but you may want to check out this thread: Why allow plea if it won’t be accepted? for a discussion of some of the practical differences between the common law and civil law systems. It’s in the context of the Moussaoui trial (the “21st hijacker”).

I can only answer from a french point of view, and only to the extent of my limited knowledge of french law. The issue is so vast and my knowledge so limited that I’m going to simply explain roughly how a criminal case is handled in France.

The inquiry is led by a specialized judge, not by the prosecutor. This same judge also issue the warrants. He’s supposed to be a “third party” independant from the prosecution. He must “instruire a charge et a decharge” which means that he must act in the behalf of both the prosecution and the defense.
The reasonning behind that is that the state has much more means than an average defendant. Therefore, if the prosecution was leading the investigations, it would be much easier for it to gather evidences of guilt. For instance, the prosecution could use the police for an extensive search in order to find witnesses inculpating the defendant, while the defendant, if he couldn’t afford a devoted lawyer, couldn’t make such an extensive search in order to find witnesses who could, say, testify that he was actually in vacation in the Bahamas when the crime occured. In this case, the judge would be expected to order the police to conduct both extensive searches.
There’s still a major flaw in this system, which is that the same judge lead the enquiry and issue the warrants. So, if he’s convinced you’re guilty, it can easily lead to abuses (and to errors if he’s convinced you aren’t) . The obvious answer would be to have two different judges, but though it has been proposed, it’s deemed too costly.
When this judge has finished his job, and if he thinks the evidences are sufficient for a trial, he send the case to the “chambre d’accusation”, which roughly has the same job than a “grand jury”, except that there’s no jury involved but a panel of judges. They can dismiss the case, order further enquiries or decide to send the accused to trial.
There are no “deals” allowed, on the basis that it could lead the accused to admit he’s guilty though he’s actually not in order to avoid a harsher sentence, or could be used as a pressure resulting in false testimonies (testifying against someone else just in order to get a reduced sentence for yourself).
There aren’t guilty/ not guilty pleas, either. All cases are handled in the same way, whether the accused admits to the crime or not.
As for the trial itself, I already wrote once here that a french criminal trial would looks more like a debate between the different parties, whith the main judge acting as the chairman, while an american criminal trial would look more like a sporting event, with the judge acting as a referee.
The “president” (main judge) would ask most of the questions to the witnesses. But the prosecutor, the defendant’s lawyer or the defendant himself, the victim’s lawyer, the two other judges, can also ask questions. The jurors can, too, but only indirectly and in written form. And it’s uncommon. There are commonly direct exchanges between the accused and the witnesses, for instance. What the witnesses can say seems also to be less strictly regulated. They can share mere opinions, for instance.
The criminal and civil trial aren’t separated. Which means that the victims (or their families) are represented at the trial by their lawyers. Which also means that a situation like the O.J. Simpson case, where he was declared not guilty during the criminal trial but liable during the civil trial can’t happen. If the accused is found not guilty, no damage can be awarded, and no other civil judgment can take place.
The “jury” actually include nine jurors and the three judges. They decide on both the verdict and the sentence. Unanimity isn’t required. Nine votes out of twelve are sufficient to declare the accused guilty, and similarily, the sentence must be approved by at least nine votes.
At the first step of appeals, the accused is tried again, following essentialy the same rules. This step has been implemented in France only very recently, following decisions of the European Court for Human Rights. The second (and last) appeal is before the “Cour de Cassation”, which include only judges and can only cancel the previous trial on the basis of legalities (whatever procedure hasn’t been respected, etc…). If it cancel the trial, the case is sent back to another court, and a new trial takes place.

But can you answer this question?In a French trial, does the defendent HAVE to testify? You may recall that OJ Simpson (invoking his 5th Amendment Rights) chose not to testify…would the prosecution (in France) be able to compel OJ to testify?
I get the impression that the French system would be faster than the American…are the jurors picked from the general population?

There’s no right for a jury trial under french law, except for criminal cases (rape, murder, etc…). Minor crimes (robbery, assault), civil cases, etc…are decided by judges alone. One or three judges, depending on the case.

I wouldn’t know exactly what the habeas corpus include, so I couldn’t answer to this one. I suspect most of his content would be covered by the 1789 french declaration oif human rights, which has a constitutionnal value, or the code itself. But i wouldn’t know for sure.

AFAIK, an accused can’t be called as a witness at his own trial. He’s allowed to speak, though, but doesn’t have to swear to tell the truth, or anything like that.

Still concerning france, it definitely isn’t. Or more exactly : I don’t know if it’s faster than the american justice, but it’s definitely not fast enough. France has lost several cases before the European Court of Human Rights because the trial didn’t have taken place within a reasonnable delay (and meanwhile, the accused was generaly sitting in a jail waiting for his trial). Based on what I read here and there, the appeals seem to be handled quicker, though. Even when the death sentence existed, there weren’t people waiting for a dozen years in the death row.
There’s at least one case when the french justice is extremely fast, though. It’s the “flagrant delits”, litterally “obvious offenses”., when you’re arrested while you’re comitting the offense, or immediatly after. It’s so fast that the accused generaly barely have the time to explain their case to their (generally public) lawyer. It doesn’t apply to serious crimes, though.
But on the overall, french justice appears slow. Now, many people are complaining that american justice is slow too, so I wouldn’t know how they compare. I suppose there certainly are comparative studies out there.

Nope, as I said above.

The circus seems slightly more limited, but IMO it’s more a cultural than a legal issue. And there’s a circus. For instance, the current trial of the alleged child-murderer Dutroux in Belgium, which as been going on for weeks, is certainly a major “circus”, and well beyond the Belgian boundaries. And it has been so since the guy was arrested, seven years ago.

Difficult to say. I suppose the better system would actually have to include the most advantageous features of both. Most people would tend to assume or to feel that the system they’re accustomed to is “the best”.

Is this broadly true, or only in cases like OJ, which amount to double jeopardy, with the civil wrong being almost identical to the criminal act? E.g., say you recklessly swerve while driving and run over some poor guy opening his mailbox. If you are found innocent of murder because of lack of intent, does that also mean the family can’t sue you for replacement of the mailbox? This isn’t a perfect example; it supposes the prosecution has decided to try you for murder but not manslaughter. If that’s not feasible in France, I’d be interested in why not.

I assume jury deliberations are a bit different. Surely the foreman of the jury is not elected from twelve equal jurors. Does the head judge simply act as foreman?

It’s indeed important to remember that though the legal systems in countries using the “napoleonic code” have the same origin, significant changes can have happened over time. Obviously, not all these countries follow the same rules.

It’s not perfectly true (once again in the case of France only). Originally, Napoleon had the legal system, the penalities, etc…entirely codified (actually, there are different codes : a criminal code, a civil code, a rural code, etc…), beginning from scratch. All legal precedents were plainly nullified.

Also, the revolutionnary government implemented a principle stating that courts couldn’t create new rules. Mainly for historical reasons, because the courts under the monarchy were in the habbit of considering their rulings as equivalent to laws. The revolutionnaries believed that the courts should only apply the law. Of course, this was totaly impractical since the law-makers can’t foresee all possible situations, nor write down every detail.

So, jurisprudence, out of necessity, quickly reappeared for new cases. But what would have been the french equivalent of “common law” (previous court rulings or customary but unwritten “laws”, as I understand) had totally dissapeared, fully replaced by the Napoleonic code.

The difference in our times doesn’t appear to me very important (but I could be wrong). The codes, basically, are organized sets of laws, nothing more. Precedents (previous courts rulings) aren’t autoritatives, but is it the case in the anglo-saxon countries? A lower court can’t directly contradict a specific ruling of a higher court, but it certainly can make a different ruling in a similar case. Such a new ruling is likely to be appealed and to end up before the highest court. Is it any different in the USA? Jurisprudence is important, and it is expected that courts will follow the jurisprudence, but they can perfectly ignore it. For instance when social changes makes the existing precedents obsolete. Once again, is it different in the US?

As for the rest of your post, I roughly explained the procedure in France in my previous post, so there’s no need to answer. Comparing both will show quite easily that the Napoleonic system has evolved in both countries, resulting in a significantly different situation. So, the “Napoleonic law” isn’t a monolithic system.

Somthing I didn’t mention. There are two “orders” of court in France. The judiciary courts handle most of the cases (civil, criminal, etc…), but the “administrative courts” handle the cases involving the public authorities.
For instance, if you have been expropriated and disagree with the indemnity you received, if an ammunition depot exploded and your house was destroyed, if you think that the parking regulation implemented by the town council is unlawful, if you think that you shouldn’t have been fired by the school where you were teaching, etc… your case will be heard by these administrative courts rather than by the regular courts. And they’re going to apply different criteria of review and different legal precedents.
This isn’t Napoleonic, though, since it originated in the principle “the king can do no wrong” which was still applied for a long time after the revolution. According to this principle, you couldn’t sue the public authorities, only make requests if you thought you had been wronged. Eventually, the governement advisory body (the “State Council”) which in practice handled these requests became a fully fledged judiciary body independant from the government during the XIX° century. Still, it applies different rules than regular judiciary courts, on the basis that there’s a qualitative difference between cases involving public authorities and cases involving only private entities.
And despite it not being actually Napoleonic, a similar thing exists in many countries using the napoleonic system.

Is this broadly true, or only in cases like OJ, which amount to double jeopardy, with the civil wrong being almost identical to the criminal act? E.g., say you recklessly swerve while driving and run over some poor guy opening his mailbox. If you are found innocent of murder because of lack of intent, does that also mean the family can’t sue you for replacement of the mailbox? This isn’t a perfect example; it supposes the prosecution has decided to try you for murder but not manslaughter. If that’s not feasible in France, I’d be interested in why not.

Thanks, Bricker and Clairobscur for your most informative responses. I have a question for Clairobscur that is related to dqa’s question above that I’ll get to after I answer dqa.

First, civil proceedings don’t trigger double jeopardy. That’s a criminal law protection only. So yes, as in the OJ case, a not guilty verdict in the criminal trial doesn’t preclude a civil claim.

But there’s actually no contradiction in that. Criminal guilt must be proven beyond a reasonable doubt, a very high standard. The civil burden is lower - a preponderance of the evidence, sometimes described as 50.1% in favor of the plaintiff.

So a jury could believe OJ guilty, but quite properly acquit him of criminal charges if that guilt wasn’t proven beyond a reasonable doubt. If that same jury was hearing a civil claim against him, it would award damages to the plaintiff. (Note: it would never be the same jury hearing the two claims.)

Now for my question: What are the burdens of proof in France (or other civil law nations)? Is there a difference between civil and criminal cases?

Re-reading dqa’s post, I’m not sure if his question is just on French law or both American and French law. My answer is meant to cover American law only.

Your post in this thread is definitely an interesting comparison of both system as applied in a real case. It also gives some motives for the opposition to the plea system that i didn’t mention, and is certainly better written.

It makes me think by the way that I forgot to emphatize the importance of written records (“proces-verbal”) in the french system. You mention it concerning the “juge d’instruction”, but for instance it’s also true for the answers you give to the police.

These are written down and you have to sign the document (or to refuse to sign it) and they constitute the reference used by the courts. For instance, you can orally states a dozen times that you indeed killed and butchered the little girl, but then refuse to sign “the proces-verbal”, stating that you never said such a thing, or that the police officer didn’t understand and recorded incorrectly your statements, or that you didn’t mean what you said, or that you just don’t feel like signing it.
It works the same way for witnesses interrogated by the police. I signed two or three “proces-verbaux” in a police station. A not so caricatural common feature in french movies depict a police officer painfully typying a several pages long “proces-verbal” using one finger.
IOW, though what you signed can be used against you, it’s not necessarily true for what you said.

I believe I answered that in one of my posts. Nope, he can’t. Actually, as far as I know, not only you don’t have to testify, but you plainly can’t.

Once again, I wouldn’t know. We would need some study. But once again, the European Court of Human rights doesn’t seem to share your opinion.


Honestly, i wouldn’t know. I suppose it only applies to such “double jeopardy” cases, but i wouldn’t know for sure.

Upon reflection, since the “cours d’assisse” which are competent for murder cases aren’t competent for minor offenses, their ruling about the murder would have no bearing concerning the mailbox. And they couldn’t make any ruling about it.

Problem is : i’m not that aknowledgeable about law, and particularily not about criminal law (I would mention by the way that french people seems to be way less informed about and interested in their legal system than american people), so i’m not sure about the crimes the “cours d’assises” are competent to judge (I point out again that these criminal courts are only judge the most serious crimes) , and I don’t know what is exactly the definition of “manslaughter” in the american system. Besides, even if I have both these informations, my lack of general knowledge could result in innacurate statements.
I would nevertheless make the following vaguely educated guess : if the court is competent for both crimes, then the jury can requalify the “murder” as “manslaughter”. If it doesn’t, then the victim has no ground to claim damages. If the court isn’t competent for “manslaughters” , then I suppose that the victim’s family could be granted damages in a different trial, by a competent court. But in this case too, there would be a crime involved, and it wouldn’t be a purely civil case.

I guess I’m not clear at all. let’s take a practical example : a relative of yours has been killed by his lover who was driving at high speed just in front of her house. There are two possibilities. Either he intended to kill her, and it was a murder. The “cours d’assises” is competent for murders. Or it was an accident caused by his reckless driving, then it’s the “tribunal correctionnel” which is competent. It’s not at all the same kind of trial, it doesn’t involve a jury, but only judges, for instance.

In this case, there would be first a trial for murder. If the accused is found innocent, the jury couldn’t requalify the crime as " reckless manslaughter ", since the court isn’t competent for this crime. Then, there would be a second trial, without jury, for “reckless manslaughter” before the “tribunal correctionnel”.

But this court too would handle both the criminal (verdict and sentence) and the civil (damages) sides of the case.
However, as i stated above, I could be wrong.

Something else I could be wrong about : in the case I described, I understand that a first trial for murder followed by a second trial for “reckless manslaughter” woudl be considered as “double jeopardy” in the US system. Am I correct?

I’m not sure what is the job of a foreman. The presiding judge read the verdict and the sentence. As for how the delibarations work exactly, I don’t know. I believe that concerning the sentence (once the verdict and the existence or not of extenuating circumstances has been established) the jurors vote secretely about sentences of decreasing severity (say : life, then 20 years, then 10 years, etc…) until a majority of 9 votes is reached. But I don’t know how it is organized practically, either (for instance, I often wondered how would the decreasing sentences be picked : 20 years, then 16 years? 20 years then 19 years 364 days and 23 hours?)

I don’t know. The system as it is organized seems to imply that there’s no difference. I don’t knwo either, beyond the word used, what could be the practical consequences. The jurors are asked to decide “in their soul and conscience” about the verdict. This wording would imply that there’s no “beyond the shadow of a doubt” requirment, and that the preponderance of evidences would suffice.

However, it would be interesting to know how it is presented exactly to the jurors, and how they’re instructed to make their decision, in both the US and France.

Also, in practical terms, does the wording makes a difference? Will the juror actually decide differently when told to do so “beyond the shadow of a doubt” and “on the basis of the preponderance of evidences”?
I probably should google a little to find some more accurate infos. I found a short document explaining in general terms the duties of the jurors and how the trial and deliberations are organized, but it’s too general to answer the questions asked here.

Though concerning another question, I noticed in this document that the criminal trial and the civil trial are actually distinct. Once the jurors have found the accused guilty and decided on the sentence, the civil trial (by the same court minus the jurors) begins to decide on the damages. So, they’re actually sort of two different trials, but the second one is dependant on the verdict pronounced.

Well…I did find the written record of the instructions given by the judge to the jurors at the beginning of a trial. But the thing is awfully long and include comments on things ranging from the content of the European Convention for Human Rights to parking space issues.
However, two things, after a casual glance :

one concerning the suestion asked by ** dqa ** about the jury. The jurors do elect a “chief juror” at the beginning of the trial. But I’ve no clue what his function is.
the second one is the oath swore by the jurors (translation mine, sorry) :

“I swear and promise to examinate with the most scrupulous attention the charges brought against [names of the accused], to not betray the interest of the accused, nor thoses of the society which accuse them, to not communicate with anybody until after my final declaration, to not listen to hatred nor maliciousness, nor to fear or affection, to decide according to the charges and the means of the defence, according to my conscience and my inner conviction, with the impartiality and the resolution required from a free man of integrity”

At first glance, it seems that this oath implies that what is asked to the jurors is a subjective judgement on the case presented. So, not “beyond the shadow of a doubt”.

While typying that, I wondered if it actually made sense to discuss the requirment for the burden of proof in France with a terminology (like “preponderance of evidence”) which is anglo-saxon , hence probably undefined and irrelevant in the french legal system.
(Not that I actually found out what were these requirements)