This research is comparative studying focuses on variations in American and French legal professions and education system regard to some aspects of culture and historical background. Both countries are committed to two different legal traditions (Civil and Common) which has a huge influence in their legal studying and practicing. France adheres to a code-based, while United States adopts a case-based. It is important to note that differences between the two legal traditions to reach the objective of this research which understanding US and French legal system. The numerous differences between the two counties might assist law students to be more professional and ready to practicing their future jobs in legal field. Currently, civil law countries started paying an attention to judicial decisions, although they remain nonbinding. At the same time, the increased role of statutory law makes common law countries engage in codification of such law.
Different legal traditions to a large extend affect the character of legal profession and legal education in the United States and France. The Legal education in France seeks to give a general information of the role played by law. For this reason, a French lawyer who seeks practicing often needs to have more training and studying for becoming a judge. The American legal education is more specific and designed to provide students practicing law by focusing more on cases and judges’ decisions. American law graduates do not need to complete additional training or studying, except as passing the bar exam to become judge, prosecutor or an attorney. In both countries, law schools are supposed to endow their students with all necessary skills and knowledge depend upon regulations and laws which both countries adapt it.
The legal profession is one of the oldest among modern practices[1]. In ancient Greece, it was common for an individual who was facing trail to represent the facts of the case on his own. However, there was an increasing culture where the person was allowed getting help of another person who would help him argue out the case. However, the ancient Greeks did not focus on practicing of law as a profession. A legal profession was founded among Romans who studying previous cases and current law in that period. Therefore, the Romans’ experience of legal profession might have had an influence on many countries.
In the modern world, the legal profession is paramount in both the French and American way of life. As previously was mentioned, both countries depend upon the rule of law in order to achieve a systematic way of achieving their goals. This is highly dependent on the education that has been imparted upon each country’s lawyers for in order to have outstanding laws, then the individuals trained in the profession must have an acute understanding of the people’s needs and what should be done to resolve their problems in order to achieve fairness and justice.
The aim of this research is to perform a comparative analysis of the American and French legal systems and it’s structured accordingly:
The first part is dedicated to legal traditions of the two countries. it is impossible to fully appreciate the character of their legal education and legal profession without understanding these legal traditions. For this reason, the part is devoted to explaining the essence of common law and civil law. The second part will discuss legal education in France and the United States. In this part, a great attention is paid to historical background. History provides a better understanding of the contexts in which legal education was developed and helps explaining the current state of legal education. The third part describes differences in legal professions and explain the point of strengths and weaknesses in US and French legal education system and trying to reach some results which might assist law students to be more professional and ready to practicing their future profession in legal field. In addition, learning in academic law schools has leaned towards the professor with student participation being limited. The law student gain access to the bar association in the middle of their four-year course which is unlike the US where the student takes the examination before joining law school. The numerous differences that exist between the two nations, it is recommended that aspiring students take care to study the legal careers and processes that must be followed in their jurisdictions before embarking on their journey to a promising career.
Brief of Legal Traditions Background
Civil law: x
The Civil Law, one of the world’s great legal traditions, historically grew up mainly in continental Europe and spread to many countries all over the world. The Civil law systems are based, as a historical matter, on the proposition that written documents will serve as the primary source and manifestation of law. Adoption of this viewpoint can be seen as having started when “The Twelve Tables” were issued in 450 BCE and having continued until the present age, which features modern States and regimes. Indeed, this insistence that the law should be written is evident throughout the long trajectory of the civil law’s growth from the Twelve Tables of Rome, through the Justinian Compilation, to the rediscovery and “second life” of Roman Law with the Glossators and the jus commune they helped create, through the territorial compartmentalization of law with the rise of the nation-state, and with the crowning achievement of legal codifications in France and Germany[2].
The Twelve Tables reveals another theme as well, as it may be seen as a means of protecting the middle class from the arbitrary rule of the patrician class. That protection came in the form of a set of legal provisions regarding the legal rights and duties of the people of Rome[3]. After the appearance of the Twelve Tables, Roman law passed through several stages and legal and political levels until Justinian’s compilation of law “Corpus Juris Civils” in the early part of the sixth century.
The Civil law tradition was very heavily influenced not just by Roman law as noted above but also by canon law and commercial law. Indeed, this mix of legal “sub-traditions” are considered the foundation of the current civil law tradition. The canon law was developed by the Roman Catholic Church to govern the Church and its leaders. It also regulated rights and obligations of Church’s communicants. Unlike the Roman civil law, which was the body of law directly associated with the power of sovereign rulers, the canon law was directly associated with the authority of the Church. In practice, however, the line between the two bodies of law was blurred: royal courts often applied canon law and ecclesiastical courts often applied Roman civil law[4].
Commercial law was different. It developed out of the guilds of merchants. Unlike Roman civil law and canon law, it was less scholarly and more pragmatic. Interpretation and application of commercial law took place in commercial courts, in which judges were merchants. The main sources of law were the interests of merchants and the needs of commerce. Eventually, however, the commercial law of Europe was incorporated in commercial codes of European nations.[5] x
A great impact on civil law was made by the Justinian Code, which became known as the “Corpus Juris Civils”. The code consisted mainly of rules and analysis focusing on the law of persons, property, contracts and remedies designed to protect citizens. These days, those key elements of the Justinian Code may be found in many modern civil codes of European countries. In fact, to civil lawyers, these subjects constitute a body of civil law. Common lawyers tend to speak of “civil law” in a way meant to refer to the entire legal system prevalent in civil law countries. However, for a civil lawyer, the term ‘civil law’ is confined to the body of law which consists of the aforementioned subjects. Roughly, the term ‘civil law’ as it is understood by a civil lawyer means private law. As a factual matter, though , the Justinian Code was not restricted to Roman civil law, but included provisions regarding the emperor’s power, organization of the empire and matters that would be described by modern lawyers as falling into the domain of public law[6]. This part of the Code laid down the tradition of unification which is one of the distinctive features of civil law: ‘One State, one Law, and one Church’[7]. This principle explains why canon law and Roman law merged so easily and then evolved into European civil law tradition.
Common law:
Common law is a legal system that originated in England and spread throughout to the British Empire. Many countries that once were in the British domain still maintain common law traditions, such as, Australia, New Zealand, the United States, and Canada. The Common law is often referred to as a judge-made law because of a great role the judges play in establishing legal principles and rules. The Common law has been over several stages, including Initiated by Henry II after Norman Conquest to unite local Saxon laws and customs with Normal law into a “common law” throughout England, also strengthened by Magna Carta when barons attempted to set up strong judicial courts independent from the King.[8]
The year 1066 may well be the most important date in the history of English law.[9] After invading England, William the Conqueror almost immediately undertook to reform the country. The main legal monument of the period is “Domesday Book”, a public record of state of the affairs in the country. In addition, Henry II made a compromise with the Church that in both ecclesiastical courts and royal courts criminals will be tried according to old customs. The Legal developments under the reign of Henry II became a basis upon which common law system rests today. Thus, under his rule courts of law became more defined. Also, his reign is characterized by a widespread use of jury[10].
Another of the important monuments of the common law tradition is the “Magna Carta” which is a charter setting forth some fundamental principles of common law. The distinctive feature of the Magna Carta is that of limited powers of monarchs, so as to allow greater freedom to English subjects. First, the Magna Carta rendered protection of property rights, by providing that one cannot be deprived of his land and rents as long as his chattels were sufficient to pay debts[11]. It also protected persons against governmental extortion by saying: “no constable or other bailiff of ours shall take grain or other chattels of any person without at once tendering money therefore, unless he can have postponement thereof by permission of the seller”. Second, it stipulated that a king could not levy taxes without the “common counsel of our kingdom” thus making sure that king does not have an arbitrary power to tax his people. Third, the Magna Carta introduced principles of due process: it provided that punishment for an offence must be imposed only upon “the testimony of reputable men of the neighborhoods”. Furthermore, the Magna Carta prohibited bailiffs to “put anyone to his law upon his own word, without faithful witnesses brought for that purpose”. Fourth, the Magna Carta guaranteed the right to justice: “to none will we sell, to none will we refuse or delay, right to justice”. Naturally, the pledge to give justice made it necessary to establish professional justice system. That is why the Magna Carta further provides: “We will appoint as justices, constables, sheriffs or bailiffs only those who know the law of the realm and mean to observe it well”[12].
Under Edward III the Justice of the Peace Act was introduced in 1361. The Act formally recognized keepers of peace, which means “justices of peace”, as part of English legal system[13]. Justices of peace were authorized to “restrain the Offenders, Rioters, and all other Barators”, to pursue, arrest, and keep the offenders in custody, and to try and punish offenders. Their authority was limited by “the Law and Customs of the Realm”. The Lord-Keeper was to perform his duty along with “four of the most worthy in the county” which were prototypes of modern magistrates, ordinary members of local communities who exercised justice[14]. x
Moreover, the Commercial law, or the law of merchant, also became a part of common law. The sources of commercial law were Roman law and customs of maritime towns that were engaged in shipping business[15]. Then as England became a maritime nation and its trade with other nations grew, the customs and practices adopted by English merchants became the part of common law. Maritime towns had their own maritime courts. In England the five towns established the Cinque Ports, the oldest maritime jurisdiction in the country and Maritime courts were later superseded by the courts of Admiralty[16].
The development of common law a great emphasis was placed on local customs and local justice. Judges came to play an important role since justice was guaranteed. Laws provided judges with instruments to deal with unusual cases involving the points which had not yet been settled by law which is a reference to Parliament or constitution.
Contrast between the Law Systems (Civil and Common):
In simple terms, common law can be described as legal system that heavily relies on customs and judicial precedents, while civil law relies largely on statutes. There are some points describe differences among the two legal systems. First, while civil law received generally principles of Justinian Code, common law mainly received local customs, that means civil law is referred as to codified law, while common law is described as a case law. However, the common law embraced some elements of Roman law through the law of merchant. On other hand, Local laws and customs are considering as part of civil. Secondly, civil law and common law were often distinguished by the aspiration to systematization. In common law, precedents have a binding effect. This, however, does not mean that rules of law made by judges cannot be changed. Judges have various techniques that allow deviating from precedents if it is warranted by the circumstances of the case.
The civil law is based on codes which contain logically connected concepts and rules, starting with general principles and moving on to specific rules.[17] A civil lawyer usually starts from a legal norm contained in a legislation, and by means of deduction makes conclusions regarding the actual case. On the other hand, a lawyer in common law starts with the actual case and compares it with the same or similar legal issues that have been dealt with by courts in previously decided cases, and from these relevant precedents the binding legal rule is determined by means of induction. A consequence of this fundamental difference between the two systems is that lawyers from the civil law countries tend to be more conceptual, while lawyers from the common law countries are considered to be more pragmatic[18]. x
