Jurisdictional dualism in France

Jurisdictional dualism in France is the separation of the French court system into two separate divisions, or "ordres", as they are called in French: the ordinary courts (ordre judiciaire), and the administrative courts (ordre administratif). The ordinary courts, also known as the judiciary order, handle criminal and civil cases, while the administrative courts handle disputes between individuals and the government. This dual system allows for a clear separation of powers and specialized handling of cases related to the actions of the government. The administrative courts are headed by the Council of State, and the ordinary courts by the Court of Cassation for judiciary law.

Introduction

File:Judiciary of France.svg

Schema showing jurisdictional dualism in the French legal system

The separation of public law (administrative) and private law (judiciary) goes back to Roman law. A separate branch for public law existed during the Ancien régime. Many other countries have such a system (including in common-law countries) not only in having a separate judicial order for administrative courts (which exist also in Germany, for example, with Article 95 of the Basic Law of Germany). However, France is exceptional in this regard because of the position of the administrative judge in being superior to the administration, and because administrative law is largely unwritten, and established mostly by administrative judicial jurisprudence. That is, administrative law derives largely from case law written by administrative judges, and not by laws passed by the legislature. In the case of the judiciary order, codes are established by the legislature and open to all, but as administrative law is result of jursprudence and uncodified, it is not discussed in Parliament, not published in the Journal Officiel, and hidden from the public. When there is a potential conflict of jurisdiction between courts of the administrative order and courts of the judiciary order, this is handled by the Tribunal des conflits.

Judiciary order

File:Justice penale francaise.png

Organization of the judiciary order for the criminal branch.

Main article: French judiciary courts

Further information: French civil law and French criminal law

Courts of the judiciary order (French: ordre judiciaire), known as "ordinary courts", have jurisdiction for two branches: settling civil cases between private individuals, as well as cases of criminal law. The branch that deals with disputes between private individuals is the civil courts. Civil courts settle disputes (for example, rent, divorce, inheritance) but do not impose penalties. The criminal courts constitute the branch that handles criminal offenses, and punish offenses against people, property and society.

Administrative order

Main article: Administrative law in France

Further information (in français): French administrative courts

The administrative courts (French: ordre administratif) in France are one of the two main branches of the French dual court system, the other being the judiciary order. It handles cases between individuals and the government at any level. Courts of the administrative order have jurisdiction when a "public person" (not a human, but a personne publique) is involved, for example, a municipality or a government department. Courts of the administrative order are organized in three levels: The Council of State, the administrative courts of appeal in the second instance, and the administrative courtsin the first instance; these courts ensure a balance between the prerogatives of public power and the rights of citizens. Specifically excluded from administrative law are civil cases between private individuals, as well as cases of criminal law; these are both handled by the § ordinary courts.

History and evolution

The dual system of law comprises private law (droit privé), also known as judicial law, and public law (droit public). This distinction dates back to Roman law.

Roman law

Further information: Roman law § Substance, ius publicum, and ius privatum

Roman law was codified, and in the south of France the Jus gentium continued to be used, although mostly only in the case of public and administrative law, and private law was left to the localities to determine. The distinction between private law and public law goes back to Ulpian, a Roman jurist of the third century, who wrote: "Public law is what regards the welfare of the Roman state, private law what regards the interests of individual persons; because some things are of public, others of private utility."

Ancien Regime

Further information: Conseil d'Etat (France)

During the Ancien Regime, the French court system was divided into two branches: the Parlement, which dealt with criminal and civil cases, and the Conseil d'Etat, which dealt with disputes between individuals and the government. This division was based on the idea of separating the judicial and administrative branches of government in order to prevent conflicts of interest and ensure a fair and impartial justice system. During the Ancien Regime, the Conseil d'Etat played a crucial role in the development of French administrative law. The Conseil d'Etat issued decisions and opinions on legal disputes, which helped to establish a body of administrative law that governed the relationship between individuals and the state. Additionally, the Conseil d'Etat was responsible for advising the king on legal matters, which further solidified its role as the main administrative court. Montesquieu expressed the distinction between the two, describing public law as, "laws concerning the relationship between those who govern and those who are governed", and private law as "laws concerning the relationship that all citizens have with each other".

Changes and reforms

The French legal system has undergone several changes and reforms throughout history. After the French Revolution, the Conseil d'Etat was abolished and replaced with a new court system that was based on separation of powers. In the 19th century, the court system was further reorganized and the Conseil d'Etat was re-established as the main administrative court. In the 20th century, several reforms were implemented to improve the efficiency and effectiveness of the court system, including the introduction of new specialized courts and the streamlining of the judicial process. In recent years, the French government has focused on modernizing the court system, including the introduction of new technologies to improve access to justice and the simplification of the court system to make it more accessible to the general public. These included the Légifrance website, offering open access to a complete database of French legal codes and legal texts, and improvements to the site of the Ministère de la Justice.

2020 court reform

In 2020, there were significant reforms that resulted in the merger of two courts: the administrative court of appeal and the Council of State, creating the new juge des contentieux de la protection (judge of protection disputes) who handles disputes over the protection of individual rights.

• The reform aimed to simplify the court system and improve efficiency by reducing the number of courts and streamlining the judicial process.
• The merger of the administrative court of appeal and the Council of State was aimed at reducing the number of courts and streamlining the judicial process.
• The creation of the juge des contentieux de la protection is intended to improve the protection of individual rights.

See also

• Adversarial system
• Code pénal (France)
• Codification (law)
• Cour d'appel (Appellate court)
• Court of Appeal (France)
• Court of Cassation
• Criminal justice system of France
• French criminal law
• Glossary of French criminal law
• Inquisitorial system
• Law of France
• Napoleonic Code

References

Notes

Citations

Works cited

• {{#section-h:Template:Reflib/FCL | Beaudoin-2021}}
  
• {{#section-h:Template:Reflib/FCL | Bermann-Picard-2008 }}
  
• {{#section-h:Template:Reflib/FCL | Dadomo-Farran-1996 }}
  
• {{#section-h:Template:Reflib/FCL | Isom-2022}}
  
• {{#section-h:Template:Reflib/FCL | Legifrance}}
  
• {{#section-h:Template:Reflib/FCL | MDLJ-OJudiciaire-2021}}
  
• {{#section-h:Template:Reflib/FCL | MDLJ-OrgJustice-2021}}
  
• Sauvé, Jean-Marc (28 September 2016). "Le dualisme juridictionnel : synergies et complémentarité" [Jurisdictional dualism: synergy and complementarity] (in français). Retrieved 22 January 2023. Le dualisme juridictionnel, qui a d'ailleurs été expressément inscrit dans notre Constitution par la révision constitutionnelle du 23 juillet 2008 instituant l'article 61-1 relatif à la question prioritaire de constitutionnalité, ne saurait en effet être regardé que comme les deux faces d'une même pièce : deux ordres de juridiction rendant la justice « au nom du peuple français » représenté dans un seul État et dans un ordre juridique unique. [Jurisdictional dualism, which was moreover expressly enshrined in our Constitution by the constitutional revision of 23 July 2008 instituting article 61-1 relative to the preliminary question of constitutionality, can only be seen as two sides of the same coin: two orders of jurisdiction dispensing justice "in the name of the French people", as represented in a single State and in a single legal order.]

Further reading

• {{#section-h:Template:Reflib/FCL | Bell-2008}}
  
• {{#section-h:Template:Reflib/FCL | Cairns-McKeon-1995}}
  
• {{#section-h:Template:Reflib/FCL | Elliott-2001}}
  
• {{#section-h:Template:Reflib/FCL | Hodgson-2005}}
  

• Bloemberg, Ronnie (25 May 2020). The Development of the Criminal Law of Evidence in the Netherlands, France and Germany between 1750 and 1870: From the system of legal proofs to the free evaluation of the evidence. BRILL. ISBN 978-90-04-41502-7. OCLC 1121421394.
• Guinchard, Serge; Debard, Thierry (22 June 2016). Lexique des termes juridiques 2016-2017 [Glossary of legal terms 2016-2017]. Lexiques (in français) (24 ed.). Dalloz. ISBN 978-2-247-16502-5. OCLC 952706958. Lay version
• van den Berge, L (23 May 2018). "Rethinking the Public-Private Law Divide in the Age of Governmentality and Network Governance". European Journal of Comparative Law and Governance. 5 (2): 119–143. doi:10.1163/22134514-00502002. S2CID 158051896.

External links

• Courts and tribunals, French Ministry of Justice (in French)