What ARE The Differences Between English and Napoleonic Law?

Something else which came to my mind, this time concerning the “circus” caused by high-profile trials.

I don’t know if it plays an important part, but the trials can’t be filmed, in France, except if it’s a trial considered of historical importance (last one was the trial of a nazi officer a dozen years ago, I believe), and even then, the footage can’t be released for a long time.

So, you can’t broadcast in “live” the trial. Perhaps it limits “the circus”.

Well…after ahving posted, I wondered “how comes there’s no “in you soul and conscience” in this oath? I’m pretty certain it’s included in the oath…”
Then, suddenly, i realized that I had made a search in french but didn’t checked the country :smack: That’s the transcript of a trial by a ** Belgian ** court of Rwandan war criminals.

Oh…well…Belgium legal system is based on the napoleonic code, so it’s still relevant to the OP.

There’s some discussion of the differences in this thread: Family Sued because of Airplane Crash.

These are my conclusions from receiving a legal education in Colombia (lots of French law studied as a base for Colombian law).

I guess the main differences have been already set out:

  1. Precedent is authoritative but not binding (no stare decisis). Individual judges can interpret the law, as applied to the facts, differently. The only law that is binding is black-letter law (generally the codes, the constitution, and international treaties ratified by each country.

  2. Most proceedings are written not oral. This means that witnesses are called and interviewed by the judge. The defense lawyer then reads the witnesses testimony and can request the judge to recall the witness and ask questions, point out inconsistencies and the like.

  • In civil cases most of the testimony is gathered by documentary evidence, as opposed to oral testimony. This means, generally, that expert witnesses and the like are court appointed (not hired by eaither party) and submit their findings, under oath, to the court (judge). Once the fact-finding term is over the judge reviews the entire dossier and decides (no jury). The decision is in writing and is communicated to the parties in writing. Appeals work the same way.

  • In criminal cases most countries have a process that has either an instructing judge (or a prosecutor) who leads the investigation or process and a deciding judge. The instructing judge receives any reports from the police, and then calls the defendant to an oral declaration (accompanied by his lawyer). The defendant has to answer questions at such declaration regarding his identity, but does not have to incriminate himself. After this there are two choices: the defendant is formally charged with a crime and the real process begins, or the defendant is released, genrally because the instruction judge decides that at law no crime has been committed or there is no evidence of a crime . If he is formally charged, then a fact finding process begins. The witnesses delare to the instructing judge (or prosecutor) orally, but the proceedings are being typed by a secretary. The witness is then told to read their testimony, verify its accuracy and sign it. This is the evidenciary document (the written and signed testimony, not the oral testimony). The witness is not cross-examined by the defense lawyer at that time (because as a defense lawyer you are not rebutting the oral testimony, instead you rebut the written testimony). As a defense lawyer you read the witness’ testimony, and prepare your questionaire to “cross-examine”. In some countries the defense lawyer can ask the questions directly to the witness, and in other the instructing judge does (with the defense lawyer present). Any questions that come up during the witnesses declaration can be added. The witness again reads and signs the testimony. Other evidence (forensic, photographic, recordings, etc.) are added to the dossier. Once the fact finding process is done, then the instructing judge (or prosecutor) decides whether or not there is sufficient indication of guilt to go to trial. If he decides there is not, then the process ends and jeopardy attaches. If he decides there is then the trial phase begins. The trial is generally a mixture of written and oral testimony. The dossier prepared by the instructing judge is submitted to the trial judge along with his conclusion (the accusation in essence). The trial judge can call any witnesses they believe necessary, or none at all. The defense can request that witnesses be called. There is generally a public audience which is an oral stage of the trial, some countries have juries, but most have just the judge. The audiences are bit more formal and dry that the anglo-saxon trials because they are addressed not to the common people of the jury but to the judge. Therefore most of the arguments made are as to whether 1) a crime was even committed, 2) the crime being tipified by the facts (e.g. manslaughter vs. murder), 3) the factual and legal errors the defense finds in the prosecutors dossier. The trial judge then decides guilt or innocence. Both parties can appeal.

In essence the huge difference is that the process is drwn out and written, not oral and in a couple of days or weeks. The trial is everything in the anglo-saxon system, the process is the all important in the napoleonic system. At any time during the process, any decision by the instructing judge or the trial judge can be appealled as they are decisions at law. The appeals courts can call witnesses, etc. to find more information, or remand to the the instructing or trial judge for more proceedures. All facets of the process have terms (time frames) to be completed if the instructing judge or trial judge does not comply with these terms then the remedy is habeas corpus. The biggest problem with the process is that generally most napoleonic countries do not have the remedy of bail while awaiting trial (except for simple offences), and therefore most accused are in jail throughout. (Processes can drag on for a couple of years)

  • Constitutional law. the biggest difference is that there is a public right to seek inconstitutionality of laws in most napoleonic countries. That is any citizen can seek to declare a law or act of government unconstitutional even if it does not affect them personally. In the anglo-saxon system, someone must have standing (defined as a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action). This public action allows citizens or groups of citizens to (theoretically) monitor the integrity of the system.

I think you’re drawing too broad a picture here, both with respect to civil systems and to systems in the common law tradition.

It’s my understanding that not all civil systems allow for judicial review. For example, I believe that France does not have judicial review in the sense that the ordinary courts can declare a law unconstitutional. Instead, the legislature can refer questions about legislation to the Conseil d’Etat for their opinion, but only prior to the enactment of the legislation. clairboscure, can you provide more detailed info on this point? If I’ve accurately summarised the French position, it suggests considerable variation between France and Colombia, both of which are civil law jurisdictions.

There are similar variations in the common law countries. In the U.K., for example, there is no judicial review in the sense of an act of Parliament being declared unconstitutional. (Subject to obligations under the the European Community, of course, but not internally under Britain’s domestic law.) So, on this point, Britain and France have very similar systems, without judicial review.

As well, the case & controversy requirement is not part of the constitutional doctrine of all common law countries. It’s a key part of US federal constitutional law and judicial review, and some countries like Australia have incorproated it into their constitutional systems. But other countries, like Canada, have not done so. We have advisory opinions from our courts, and we also have more generous standing laws than do the American federal courts, which allows Canadian citizens to challenge statutes by way of declaratory actions, which sounds much like what you describe, depocali.

So in summary, I don’t think you can say there are clear-cut, consistent differences between the consitutional law principles of civil systems and those of common law systems.

With respect to judicial review, if by that you mean the courts being able to declare a law unconstitutional, the situation in continental Europe is covered these days by the European Convention on Human Rights. This convention basically covers the same rights that in the US are covered by the constitution. Courts in member states are bound to apply the ECHR, so if they find that a law violates the ECHR in a particular case, they have to refrain from applying that law. In effect that has a similar result as the US mechanism of declaring a law unconstitutional.

I should add that the ECHR of course does not detract from any national instruments for judicial review. I know Germany has a Federal Constitutional Court (Bundesverfassungsgericht) that interpretes the German constitution. The Netherlands, on the other hand, explicitly forbids courts to check the constitutionality of laws (art. 120 Constitution), although courts can and do review laws in other ways.

Actually, it’s more complicated than that (mostly because, I believed, you conflated the “conseil d’etat” and the “conseil constitutionnel”), though indeed the citizens don’t have the "right to seek inconstitutionality of laws " in France.

-The “Conseil d’etat” review all laws before they’re presented to the parliament, in behalf of the executive. But the “Conseil d’etat” acts only as an advisor in this case. He reviews the constitutionnality of laws, of course, but also point out the possible legal issues which might arose as a result of the enactment of this law, or from, say, an unclear wording. But this review is only an advice, not a ruling, and the government can perfectly ignore it. For instance, around 1990, the Conseil d’Etat stated that banning the islamic veil in schools would be inconstitutionnal. I don’t know if it maintained its stance when a similar law was passed some months ago, but if it did, obviously, its advice was ignored.

  • After a law has been passed, 60 PMs (out of roughly 600) , or 60 senators (out of roughly 300), or the president, cant sent it for review to the “Conseils Constitutionnel” (in practice it means that some party of the opposition has to been opposed to the law). Only some laws related to the organization of the institutions are mandatorily rewieved by it. The “Conseil constitutionnel” is the ultimate authority as far as constitutionnal issues are concerned, as its name implies. Contrarily to the “Conseil d’Etat”, the “Conseil Constitutionnel” issues rulings which are mandatory. The law can’t be signed or enacted if it has been deemed unconstitutionnal. However, as I already mentionned, if none of the parties represented in the parliament decide to contest the law, then there’s no constitutionnal review of it, which is my opinion, is a significant issue.
    -Finally, concerning the ordinary courts (here, I might be mistaken especially since things could have evolved since I studied constitutionnal law) : Nothing prevent them, in theory, from declaring unconstitutionnal a law which hasn’t been reviewed by the “Conseil Constitutionnel” (if they have been, it means that the Conseil has deemed them to be constitutionnal, and all lower courts must conform to this ruling). However, the fact is that courts don’t review the constitutionnality of laws in practice (IIRC, both highest courts of appeals have roughly stated that it’s the parliament and Conseil Constitutionnel job to make sure that laws are constitutionnal, not theirs). There’s only one exception I can’t think of : laws contradicting international treaties. Over the last 20 years or so, the courts have voided laws which contradicted international treaties, on the basis that the constitution grant to treaties a higher authority than to laws.

Once again, dont quote me on this, though.

Another issue I would mention : since the constitutionnality of laws is reviewed (if they have been reviewed) immediatly after they’ve been passed, there’s no way to modify the ruling. So, a 40 y.o. law which is now conflicting with the social evolution can’t be voided by any court. Only the parliament can modify it.

There has been several proposals to allow citizens to directly refer a law to the constitutionnal council (instead of this right being reserved to the PMs/ senators/president, as explained above), but none have been accepted so far. I personnally think it would be a good idea, since currently, the lower courts don’t check the constitutionnality of laws, the Conseil Constitutionnel can’t reverse its former rulings, and many laws are passed without being reviewed by the Conseil at all (either because both the majority and the opposition supported the law, or because nobody in the parliament noticed there could be a constitutionnal issue). As a result, there are laws in the books which, in practice, can’t be contested on a constitutionnal basis.
It’s already a long post, but while I’m at it I’m going to mention a last point. The constitution explicitely list the matters about which the parliement is competent to issue laws. These are the most important issues, and though it covers a wide array, there are many matters which aren’t considered as belonging to the parliament competence. Instead, they’re adressed directly by the executive power, which issues “decrets”. These “decrets” have a lower authority than laws. It means for instance that though the parliament can still pass a law not related to these listed issues, the executive can modify the rules by just issuing a new “decret”. More importantly concerning the topic we’re discussing : the courts, if they find that the case involve a law which actually doesn’t belong to these categories, will apply to this law the same rules they apply to the “decrets” and all other decisions or actions of the executive, which in particular include a review of the constitutionnality of said laws. So, only laws related to matters for which the parliament is actually competent are considered “out of reach” by the lower courts. But of course, these matters are also the most important. Noticeably, individual rights and public liberties.
Personnly, I would like the courts to change their stance and accept to review the constitutionnality of laws, or to allow the citizens to directly refer the law to the conseil constitutionnel, including when it already reviewed them in the past.

FYI, the members of the “Conseil d’Etat” are appointed by the government, and have less guarantees than regular judges (beside advising the government, the conseil d’etat also include the highest court of appeals for administrative matters, criminal and civil matters being handled by regular courts headed by the “Cour de Cassation”). The members of the Conseil Constitutionnel are appointed for 9 nine years, three by the president, three by the president of the parliament, and three by the president of the senate. It also include de jure the former french presidents, but until now, none has seated in it. There are rumors that Giscard d’Estaing, president during the 70’s, and which just retired from political life after heading the European Convention which drafted the proposed European Constitution could want to use this right.

I hope my post was more or less understandable.

Yes – generally you cannot be criminally tried twice under the same jurisdiction, for the exact same act.

Now, there may be diversity of jurisdictions – for instance, the policemen who beat up Rodney King were acquitted in a State court of the applicable crimes under the California Penal Code, but then were tried also in a Federal court for the crime of violating King’s Civil Rights. And there may be such a thing as later finding out new evidence that reveals that something else was also happening at that time. But that’s different. If the alleged events are that you caused someone’s death, the prosecution has to try you on all the charges applicable to causing that death, they can’t keep filing all the subset variants separately.

What happened with OJ was that after being prosecuted by the State for the crime of murder, then he was the object of a lawsuit by the families for the civil tort of “wrongful death”, NOT “manslaughter”, which is itself still a crime.

Quite right, I did - thanks for the clarification.

Y’see, in Louisiana we got da Napoleonic Code, which sez what’s da husband’s is da wife’s and what’s da wife’s is da husband’s. . . . Under da Napoleonic code, a husband’s gotta take an interest in his wife’s affairs . . . especially when dey got a baby comin’ . . .