Before the French Revolution, the French law had a combination of Roman law and German law. (In this context, the term “German law” refers to the customs of various localities around France that reflected the cultures of the various Germanic tribes that had occupied those areas for several centuries – in some cases going back to the 3rd and 4th centuries CE.) The influence of Roman law was in the proof of property and rights which operated directly on tangible or intangible things. Also, the German law had an influence on the French through law enforcement and customary.
In 1789, there was no French legal system and no French law as such, Rather, there were many different laws and legal system collectively referred to by legal historians as general legal principles of “l’ancien droit” which lawyers were able to discern common underlying trends in the law of the various regions both north and south. They tried to extract general principles and order them in a logical manner. Two of the best known legal writers of pre-revolutionary law are Domat 1627-1697, author of “civil laws in Natural order and Pothier 1695-1772, author of several treaties on civil law[19].
The French Revolution dramatically changed in some of the principles of the old law which was applicable, especially in the property Law and l’ancien droit. One of the most important legal implications after the Revolution was a Napoleonic Civil Code which still applies now in France. Since the adoption of the Code Napoleon in 1804, French law has developed by adapting new forms of property, and the concept of public interest which serves as restrictions on individual rights which justifying state intervention and state ownership. In addition, the French law affected to a large extent by international law, specifically European Union law. x
American law:
American law largely evolved from English common law, since American colonies were under the British rules. The American law to a large extent is a judge-made law. in the colonial period legal rules originated from the aspects of English law brought by settlers, norms and practices that developed indigenously to address new special problems of colonial life, and from ideology of settlers.
In post-revolutionary period changes mainly in the scope of the law through a constitutional convention and formation of new institutions. At that time, there were many American jurists, judges, and lawmakers began to adopt an independent approach in levels of political, economic, juridical, and social realities. American jurists, judges and legislators started adopting more self-conscious and independent approaches[20]. They started adhering to doctrines that reflected political, economic and social realities of the new-born state. Furthermore, during the formative period of American law 1775-1861, American courts responded to the need to adjust law for a new and expanding economy by introducing the concept of stare decisis. The concept assisted in judicial innovation and in adopting a more relaxed approached to the value of precedents. For instance, unlike English court, an American court could overrule its own earlier decision[21].
Modern American law is characterized by the prevalence of American legal realism. American legal realism regards judicial decisions as reflections of judges’ own views. In recent years, American legal realism adopted such theories as critical legal theory, critical feminist theory, and critical race theory[22].These theories mark the acknowledgement that law is essentially a human product rather than creation of a higher authority. Therefore, it can be product of human error and misjudgment and thus, can be changed so as to correct injustice. Another development in modern American law is growing importance of statutory law and regulations.
France:
background of Legal Education in France:
Legal education in France was influenced by University of Bologna in Italy as mentioned earlier,x the legal system in France is based on the mediaeval Roman legal system. By the time the Roman legal system was established, it was common for the individual to hire a legal representative trained in oratory skills to make a formal representation on his behest. These orators had no legal training and often practiced as a friend to the individual given that it was illegal to hire such a person. x However, the Roman system changed that perception by allowing these representatives to charge some fee for their services. With this and other developments, it became profitable for one to study law. The first legal academic institutions in France specified in teaching the Roman and canon law in Latin[23]. However, the middle ages saw a decline in the quality of education that was offered in these institutions. The legal system received revival in the seventieth century x where it became the national norm that legal academic faculties would teach the French national law. The edict also established the modern system of bachelors “Licence”, Master, and doctorate in law under the French system. However, the French revolution did away with the system of teaching but the years that followed restored some of its qualities such as the three tier system of learning.
Napoleon helped establish the modern academic institution as it is today. Under the Napoleon era, the teaching of law in French academic schools would be focused on the nation’s private laws. Students would be taught by legal professionals who had themselves been assessed to be qualified in their disciplines. This would be modified in the nineteenth century to accommodate the growing desire to have lawyers qualified in certain divisions. The twentieth century saw the codification of these changes and the move towards student participation as opposed to the traditional system that focused on the professor. The current system is made up of studies in civil, commercial, public international, administrative, private international, labor, family, bankruptcy, and negotiable instruments law.
Studying law in France:
French legal education largely stands as independent liberal education. In other words, it is not confined to any specific vocation. The idea behind such liberal education is to provide an intellectual environment in which students can broaden their mind: they are not tied to strictly practical disciplines but are encouraged to see a bigger picture[24]. There’s three law degrees in France that Licence, Master and Doctorate. Generally, it takes between four/five years to obtain the licence degree. The completion of licence degree gives students an opportunity to start careers in many areas such as public administration, tax authority, and insurance. However, the licence degree is not enough to enter to the judiciary or legal profession, who is looking to be in legal profession must complete more studying degree and take competitive examination organized by the “Ecole Nationale de la Magistrature” for judges or centre regional de formation professionelle for advocates. The competitive examination is conducted within the law schools. There are units of the “Instituts d’Etudes Judiciaires” attached to every law school for a competitive examination[25].
The French law curriculum includes a range of subjects during the first year the students are instructed in foundation subjects start from introduction of legal studies, political science, constitutional law, history of law, civil law, and to many subjects that related to law. In addition, at their first year, the students are taught such complimentary disciplines as modern social and political history and economic science to expose students to related subjects in law. x
French legal education is more abstract compared to practical legal education in common law countries. It emphasizes theoretical rather than practical knowledge. Such an approach is explained by philosophy of French education which provides a student with a sound general knowledge and to teach him or her to operate abstract concepts and develop logical arguments.
Overall, French legal education can be described as very inclusive education which is designed to supply students with general knowledge rather than practical skills. Practical skills are meant to be acquired when a student prepares for the competitive examinations mentioned above and when a student pursues internship. It would be fair to say that French legal education is less specific, although during the last years of education students may select specialized subjects. x
United States
background of Legal Education in the United States
the early periods of American history saw no attention being given to formal learning of laws. Instead, law was learnt under an apprenticeship approach where the candidate was tutored by an experienced advocate. However, the University of Pennsylvania established a law school during the colonial period with a professor being charged with the education of students of law[26]. Similar schools would be established at Harvard, Yale, and Columbia. These universities churned out students who had varying degrees of knowledge in law given that there was not a unified way of learning law and the majority of those who purported to be lawyers did so under apprenticeship. However, graduates of the formalized system formed the American bar association in 1878. The association then convinced the states to limit admission to the bar. The result was the creation of a three-year period of study that a student must complete before becoming an advocate in the United States. It is also notable that there was extreme segregation of women from law schools well into the twentieth century.
Studying law in the United States
To enroll to a US law school, a student first must obtain undergraduate education degree and has to pass the “LSAT” that is a uniform and standardized exam in the United States to apply to a law school. Unlike French legal education, the American legal education is less regulated by State because many law schools are private. Generally, American schools there are no identical curricula, but the basic curricula that consist of required subject are fairly similar. The first-year curriculum mostly consists of such compulsory courses as Contracts, Property, Torts, Civil Procedure, Criminal Law, Legal Research and Writing Skills. Among courses, there are constitutional law, taxation, family law, and conflict of laws, evidence, business organization, appellate advocacy, wills and trusts, and may other courses. In the third year, a student selects his courses by himself. After completion of a three-years, a student is awarded with J.D “Juris Doctor” degree. The student is permitted to take bar examination if he or she graduated from the ABA approved law school. x
Legal Profession in The Two Nations
Practicing law in France
Lawyers:
Legal profession in France has a wider field of activity than in the United States. Those who enroll in law faculties not necessarily intend to practice law or to teach law. Hence, not every graduate of a French law faculty will practice law.x The practice of law in France falls under three major categories of practitioners which “avocats”, “avocats aux Conseils”, and “notaires”. Avocats means lawyers who are entitled to appear before a judicial body and provide advice to clients and represent them in proceedings[27]. Secondly, Avocats aux Conseils are lawyers who are entitled to the Court of Cassation and the Council of Estate which is the highest administrative position. They have a right to plead before the aforementioned bodies and to appear before them as counsels. Moreover, Notaires are public legal officers who have a right to draft authenticated and enforceable legal instruments. also, they may act as officers of the court. x
Judges
The process of becoming a judge “Magistrat” in France begins by taking an entry examination into the national school for the judiciary. In France, judges are part of the civil service and can work in any part of the country. A magistrat is a broader term means a judge and prosecutor. French judges are recruited through competitive examination process to be eligible for judicial career in France, there are some requirements has to obtain a master degree of Law and then take competitive exams organized by the Ecole Nationale de la Magistrature (ENM). There are three kinds of the ENM exams. The first is for those who are aged “30” or younger and have completed any four-year degree. The second examination is for those who are aged “40” years or below and has been in the civil service for at least four years. The third examination is for those aged 40 or under and has been in the legal profession for at least eight years and does not have specific degree requirements. The majority of judges are recruited through the first type of examination. Upon the entrance in the ENM the students undergo a formal training which follows a specific program of studies. The training is focused on acquisition of professional skills and judicial culture into the method of working peculiar to each type of court[28].
French Judges play more active role than their common law countries counterparts.x France, as many civil law countries, adopts an inquisitorial model of justice. The model suggests that a great initiative in case resolution belongs to a court. Also, it takes significant responsibility for gathering the evidence and determines the way in which facts and law are to be presented and take a decision. French judges thus assume inquisitorial role that they are actively involved in the process by investigating the evidence and they may demand more evidence if they think it is necessary. In modern realities this Justinian principle empowers civil law judges to investigate and find the law whether with or without the assistance of the parties involved.
Practicing law in the United States
Lawyers:
In the United States, legal profession is not as fragmented as in France. The term “attorney” describes every practicing lawyer. As well as in France, many lawyers, who completed legal education and have been admitted to the bar exam for specific states. There is no distinction between judicial or prosecutorial career. Once a law school graduate is admitted to the bar, he or she can practice the law. Apart from admission to the bar, there are almost no additional requirements for further education as in France. The applicant is required to take written exam which is administered by the bar exam of the state to learn and understand particulars of the state’s law[29]. In most states, it means that a young lawyer becomes a full-fledged member of the bar. There is no need to undergo the period of clerkship or any other training. x
Judges:
There is no distinct career path in judiciary as it has been mentioned before, judges are selected from mature lawyers. A person who wants to become a judge will generally acquire necessary experience and then participate in the selection process. In most states, a lawyer will become eligible to serve as a judge after many years of law practice, which can be mixed government and private practice.[30] The selection process varies from state to state. In many states judges are appointed by the governor subject to legislative approval. There is no particular system for professional evaluation and promotion of judges to higher courts. This strength is based on relative maturity and previous experience as lawyers.
The role played by American judges in judicial process is different from that one of French judges. The Unites States follows an adversarial model of justice. This model suggests that parties to a dispute possess a great degree of initiative. The reason is that in adversarial process it is not the role of judge to fill the gaps in pleadings before the court. The role of judges is often confined to selecting the stronger argument. Another reason why the judge’s role is less active is the system of jury trials. In jury trials, it is usually not up to the judge to decide the ultimate outcome of the case. It is the jury who rules on number of issues that decide the ultimate outcome. As well as judges, juries are passive audience before which the parties present their arguments. As well as judges, juries do not guide the inquiry or control proceedings. Their role is to listen to the facts as proven by the parties and to receive instructions from the judge and then deliver their ruling. Thus, in jury trials, the judge’s role is often confined to giving instructions to the jury.
Conclusion
To a large extent, the difference in legal education and legal professions are defined by law traditions adopted by the two countries. France adopts a civil law tradition which is characterized by codification. It is not surprising that French legal education pays a great attention to codes and texts and syllabuses are very rigidly structured.x It is merely a reflection to tendency to codify, systemize and otherwise organize texts which is an inherent feature of civil law tradition. The United States adopts a common law tradition which is known for its case-by-case approach. Hence, American law students pay a great attention to cases rather than to legislative texts. In addition, one may infer that adherence to different legal traditions is responsible for difference in focus. French legal education is broad and less specific, whereas American legal education is more practice-oriented and more specialized. Among other differences, not necessarily attributed to civil law and common law traditions, there is a regulatory approach. French legal education and legal profession are largely regulated by state and such regulation is highly centralized. American legal education and legal profession is rather subject to self-regulation.
French legal education can be more suitable to those who do not intend practice law, but want to acquire fundamental knowledge of law, its history, philosophy and connection with such areas as economy and other social sciences. In other words, if one seeks more academic insight in law, French legal education could be a better choice. The U.S. legal education is a better choice for those who intend to practice in specific field of law.
The French legal profession is also argued to be centralized in that it is under the control of the judiciary. x This is as opposed to the American system where each state has the autonomy to decide on how lawyers are taught and admitted to the bar. The two nations’ share a common characteristic of having both common and civil laws though each goes by a different title. In addition, each nation has a stringent process that has to be followed before the admission of a lawyer to the bar and a judge to the bench. x
