Comparative Legal Systems

Assignment

A comparative analysis of the Features of German and French Legal System

Civil law Legal System is a legal system which originated in Continental Europe, also known
as the Romanist Legal System. Its core ideas are heavily drawn from the Corpus Juris Civilis
of Rome, the Napoleonic Code, and Principles of Natural Law The main feature of this legal
system that makes it different from other Legal Systems especially the Common Law is, that
the core principles of the Civil Law are codified into a referable system which serves as
primary source of Law. In comparison to Common Law, Judicial Precedents hold no or little
value in civil law although in practice judges tend to follow previous judicial decisions.
Moreover, in this legal system, Courts specific to underlying courts are present, that advance
on arguments and legislations and interpret the specific code. In the Civil Law legal family,
two groups hold prominence, they are The French Legal System and The Germanic Legal
System.

The roots of French Legal System can be traced back to the French Revolution. One of the
major objectives of this Revolution was to remove the ancien regime or the Ancient Social
System, which consisted of feudal system ,it favoured the elites and the bourgeoise.1 After
the revolution all the power was vested with the elected legislative assembly. And in an
attempt to establish a new regime in lines with the philosophy of Liberty, Equality and
Fraternity, old institutions were destroyed or removed by the revolutionaries. All this
culminated in to the Napoleonic Code or Code Civil of 1804, the code tried to abolish the
feudal practices and establish a new order.2 As early as the 15th century, the royal houses of
France instigated the collection of laws regulating human relations some Roman laws based
on the Justinian code, and other based on common custom, the former being written down
these laws were very often abused and attracted criticism. On the other hand, in Germany
because of absence or lack of a Centralized power, centralized judiciary, no royal jurisdiction,
no royal officers and the presence of several provincial and territorial governments led to lack
of unified and uniform law, the laws and at that time were based on local customs, which
were quite archaic, moreover, Germany also lacked jurists and lawyers and France was the
land of best of these.3 Another reason of acceptance was that the Roman law was the law of
the Holy Roman Empire, and the Kaiser of Germany viewed himself as the direct heir of the
same. Though, the Civil Law originated from the Roman Laws, it is often said that Germanic
1
Napoleonic Code, BRITANNICA ENCYLOPAEDIA, https://www.britannica.com/topic/Napoleonic-Code.
2
Tom Holemberg, The Civil Code: an Overview, NAPOLEAN SERIES, https://www.napoleon-
series.org/research/government/code/c_code2.html.
3
Reinhard Zimmermann, The German Civil Code , OXFORD C.L.F.(2006), https://ouclf.law.ox.ac.uk/the-
german-civil-code-and-the-development-of-private-law-in-germany/.
Law is more Romanic than the French Legal System. This led to readily acceptance of
Justinian Code of Roman Emperor Justinian I, with some modifications, to suit the local
needs, leading to development of Usus Modernus Pandecturum., which refers to codified law
based on Roman law and harmonized according to the needs of Germans.4 In 17th and 18th
century, with the rise of Enlightenment, the movement for codification began and the
Napoleonic code was a major push, which was applied in Western Germany, which was
under French Rule during Napoleonic wars. It was only with the formation of Reich that a
national codification was possible, in the form of Bürgerliches Gesetzbuch or BGB in 1896
and went into effect in 1900.5 One major difference that can be observed in both the Legal
systems apart from the fact that in Germany codification was done after 100 years of that of
France, is that in Germany no violent means to implement or enact the code was used. In
France the changes were brought by people who fought for themselves. The German code or
the BGB was the result of leaders and philosophers, like Puffendor and Christian Woolf who
were influenced by ideas of enlightenment and through the rational thinking, consciously
planned rigorous deductions and legal concepts, they brought out the change.6

Napoleon presented his Code as part of what he called “bringing the Revolution to its
end,”7 in the double sense of the word. The Code was enacted to end the Old Regime
practices like feudal system and implant Natural Law values like equality to all, freedom to
contract etc. It was a mixture of Droit ecrit and Droit Coutumier, that is it was an
amalgamation of the Roman Law, prevalent in Southern France and Customary Law. The
droit Ecrit provided the entire law of Contract, law of wills, recognized dowry as contractual
property etc, while the Droit Coutumier, laid emphasis on family law, wills, property. The
presence of Customary Law or Droit Coutumier, shows the German influence on the French
legal system. On the other hand, compared to the Liberal Code Civil , which is addressed to
the common people, is the conservative BGB, which is often described as Deep, exact and
abstract and created for professional lawyers and not for laymen. Moreover, compared to the
Code Civil which was a result of Mass unrest, the BGB was created in the times of Political
Stability during Bismarck‟s rule. Moreover, it was also believed at that time that for general
good, state should not interfere. Though, some social movement did take place in 1880s for

4
Lorena Atzeri, Roman Law and Reception, EGO, https://d-nb.info/1175662682/34.
5
Reinhard Zimmermann, The German Civil Code , OXFORD C.L.F.(2006), https://ouclf.law.ox.ac.uk/the-
german-civil-code-and-the-development-of-private-law-in-germany/.
6
Christian Wolff, STANFORD E.O.P (Sept. 30, 2019), https://plato.stanford.edu/entries/wolff-christian/.
7
Tom Holemberg, The Civil Code: an Overview, NAPOLEAN SERIES, https://www.napoleon-
series.org/research/government/code/c_code2.html.
the enactment of legislations to protect the workmen but in private law, it didn‟t meet in
success.8 Moreover, the code BGB, also didn‟t take into consideration the changing social
scenario, and regarded the moneyed entrepreneur, the landed proprietor as typical citizen and
not the small artisan or the factory worker.

If the Structure of both the codes is compared, the Code Civil consists of an introductory title
with six articles, which is followed by the First Book, Des personnes, which extends from
Article 7- 515, It has provisions regarding Nationality, Legal Status of Foreigners, family
relationships, marriage, divorce, legitimacy, adoption etc. The second book is On property
(Art. 516-710), it deals with ownership of things, acquisition by contract etc. The third and
the last book, covers all the remaining portion of the Code Civil. It covers succession, gift,
general law of contract, rule of penalties, rule of evidence, law of delict, matrimonial
property, security rights etc. In comparison to the Code Civil, the German Bürgerliches
Gesetzbuch is also divided, it consists of five parts, each devoted to a particular topic. The
Book I is the precedent of the later four books, and is titled General Part. This part introduces
the basic institutions common to the Private law. These institutions were taken from the
works of the pandectists, and were not invented by the draftsmen of the code. Book II covers
the law of obligation, which has been considered as per the Roman Law traditions as Iura in
Personem, or Rights which can be claimed against a particular individual. Book III deals
with the Laws of Property, which is a Iura in Rem, i.e. can be enforced against everyone. It
covers mortgage, pledge, ownership of property etc. Book IV is on Family Law and Book V
is on Succession. The contrast in the arrangement of both the codes is that the French Code
is, that has been considered a literary masterpiece, with clear provisions, minimum
exceptions and limitations and without confusing abstractions. While the one of Germanic
code is criticized on several points, majorly on wrong placement of certain laws, or clubbing
totally different laws under the same Book, for instance, law of sale and law of torts are two
distinct fields, with very little common between them, in BGB, they are dealt together in
Book II or the Law of Obligations. The ill arrangement was also criticized for Code Civil by
the Tribunes, who were elected officials, on the grounds that the code was incoherent and
lacks proper introduction. Moreover, several books of Code Civil, especially Book III has

8
Reinhard Zimmermann, The German Civil Code , OXFORD C.L.F.(2006), https://ouclf.law.ox.ac.uk/the-
german-civil-code-and-the-development-of-private-law-in-germany/.
been criticized for being too long in an attempt to include everything on the modes to acquire
property.9

Another similar feature, and perhaps the most criticized part about the two codes is over the
status of Women, both the codes represent the typical bourgeoise family of Germany and
France. In Germany before the enactment of The German Code, the family laws,
particularly about the status of women were different from one region to another, varying
from equal inheritance rights as men to no inheritance rights. It was strongly criticized by
feminist leaders like Lily Braun and Mina Cauer for its patriarchal character.10 It did not
reform marriage and divorce laws, and did not implement legal protections for mothers in the
workplace or in the case of custody disputes. Similarly, the French Civil code also didn‟t
contain any provisions regarding Women suffrage and other rights, the parental power was
ceded to the Father, the father directed the education of his children, managed their property
and enjoyed its revenue (Article 389). The father's powers over his children were broad, the
women or the wife was supposed to run the household and take care of the children. Adultery
was a crime for women, those found guilty could be imprisoned for between 3 months and 2
years depending on what the husband wished. The women were not allowed to enter into
contract, without the permission of their husbands. They could do small businesses, but the
husband had the right keep their wives‟ earnings. Divorce was made difficult and expensive,
though it could be made on the grounds of adultery, as it was considered against morality.
However, unlike the BGB, the French Code had the provision for unmarried women
inheriting their parent‟s property.11

In France, as the bourgeoise grew in influence, there was a realization that their prosperity
depended on the personal freedom, especially the one to enter into contract, for trade and
business purposes, Thus, this law of contract forms a major portion of Book III or the Book
of obligations, and has been excluded from many restrictions other than those under Lois
d'ordre public, or the laws of public order. The criticism this law faced was that though it
recognized liability in case of an accident at work, the position of worker was left
undetermined. Similarly, under the BGB the Law of Contract is dominated by Bourgeoise

9
Ibid.
10
Towards emancipation ?, DIGITAL EXHIBITION, http://hist259.web.unc.edu/german-civil-code-
burgerliches-gesetzbuch-bgb-1900/.
11
Assessing The French Civil Code, UK LAW ESSAYS(May 23, 2019 ), https://www.lawteacher.net/free-law-
essays/administrative-law/assessing-the-french-civil-code-administrative-law-essay.php
idea.12 The parties were free to decide the conditions of contract, and it was the duty of the
parties to honor the conditions of Contract. Compared to the Code Civil, 1804, the BGB had
some explicit terms to protect parties in the contract from exploitation by their counterparts.
For instance, Provisions to make the contract voidable if found to be exploitive was present,
exorbitantly high contractual penalties could be challenged in the courts etc. But, similar to
the French Code, this didn‟t provide any relief to working class as only few rules about
„person entitled to services‟ existed, and it didn‟t contain much provisions on safety of work.

The BGB of Germany and the Code Civil, were held to have given birth to a new era of
liberalism, in both the countries, there was total abolition of fiduciaries, marriage was
secularized, the principles of equal distribution of state were laid down etc.

As the Ancien Regime was brought down, a new state was founded on equality. In order to
maintain congruence between social reality and idea of society, and in order to strive towards
those ideas of justice, the new court system was established under the Napoleonic code. This
court system just like the Code Civil, inspired legal systems around the world, including
Germany. However, there existed some difference between the two. In France the there are
the three usual levels of regular courts: the courts of first instance (civil, commercial and
criminal), the intermediate appellate courts, and the highest court. In addition, there are a
number of special courts. In every canton, for civil matters there was a Justice of Peace,
chaired by a single judge, with conciliation as the primary objective.13 Above it, was the
tribunaux de premijre instance, with three judges. For Commercial matters there was Court of
Commerce, which was presided by local traders or merchants for a fixed term of two years.
In criminal there were three different courts of first instance, depending upon the nature of
crime, Tribunal de Police, which tried for petty crimes, tribunal correction for ordinary
crimes and Court d‟ assises for heinous crimes. The Court d‟ assises consisted of 3 judges
and 12 lay men. Above the Instance courts, there was a Court d‟ appeal or appellate courts,
with three judges each and at the top was the Court of Cassation. 14 In Germany the courts
were not organized in a single hierarchy. There were a multitude of hierarchies‟ present, for
example the taxation Courts had a separate three-tier hierarchy. A common feature between

12
Inga Markovits, Civil Law in East Germany. Its Development and Relation to Soviet Legal History and
Ideology, 78(1) THE YALE LAW JOURNAL 1, 26(1968).
13
Joseph Dainow, The Constitutional and Judicial Organization of France and Germany and Some
Comparisons of the Civil Law and Common Law Systems, 37(1) INDIANA LAW JOURNAL 1, 12 (1961).
14
Francis Deak and Max Rheinstein, The Machinery Of Law Administration In France And Germany,
PENNSYLVANIA LAW REVIEW (May, 1936),
https://scholarship.law.upenn.edu/penn_law_review/vol84/iss7/3/.
both the judicial organizations was the presence of Collegiate system in lower courts for
trying petty cases. There was also no Supreme Court present in Germany. Though, the
Reichsgericht was the highest court, it had a jurisdiction only over the civil and criminal
cases.15

In France, the courts whether entrusted with Public law or private law were the immediate
organs of the National or Central government., while in Germany the Courts were divided
between the Reich, which was the central authority and the States. Only the Reichsgericht,
which was the highest Court and some administrative Courts were under the federal
government.16 Another major difference between the two was the fact that, in Germany there
was large scale participation of lay-men or those not much acquainted with the law in the
judicial process, they were called as Aldermen, in criminal cases. They played pivotal roles
especially in non-civil cases. In Criminal cases and cases related to Labour and
Administrative issues, the bench was formed of Judges and Lay men, who were in majority.
This was not the case in France. These laymen deliberated on matters with the judges and
carried equal votes, on all matters. Though, it was criticized for decision based solely on
sentiments and ignorance of laws and facts. This practise insured the influence the influence
of the average citizen on the judgement making practise in Germany.17 The ways in which the
highest court in the two countries worked was also different,. It had no jurisdiction to pass
upon a decision rendered in a supreme administrative court of a state or in any one of the
many supreme administrative courts of the Reich. On the other hand, in France, the Court of
Cassation was the highest court in civil and criminal matters, its original title was Tribunal de
Cassation. Its major function was to assist the legislature in making the laws and check if the
courts are not deviating from what is written in legal texts. It was a court of review rather
than a court of appeal. A sharp distinction exists between the Court of Cassation and
Reichsgericht on appeal, it was that in cases of misapplication of law by the lower court, the
French Supreme Court would transfer the case to an appellate court while the Reichsgericht
would render a final decision on that case. The Court of Cassation was also responsible for
construction of laws and completion of incomplete laws.18

15
Joseph Dainow, The Constitutional and Judicial Organization of France and Germany and Some
Comparisons of the Civil Law and Common Law Systems, 37(1) INDIANA LAW JOURNAL 1, 12 (1961).
16
Ibid.
17
Ibid.
18
Francis Deak and Max Rheinstein, The Machinery Of Law Administration In France And Germany,
PENNSYLVANIA LAW REVIEW (May, 1936),
In both the legal system, the position of judge was much similar, they were appointed for life,
the position was of respect and prestige, but they were paid very modest. There was
difference in personal guarantees of judges of various courts in France, but in several German
states, the judges of Ordinary courts and Administrative Tribunals enjoyed similar personal
guarantees.19

The Code civil of 1804 and the German BGB are the products of their age, and important for
understanding the growth of Civil Law across the globe. Both the French and the German
Legal system molded the legal systems of several countries. Moreover, in the present age of
present age of internationalism, economic globalization, and democratization, this study
becomes even more important. The comparison of two civil law countries shows how
codification came into being, and what major changes it brought, how the judicial system
works and what role it played in its respective country. All this study helps in attaining a
deeper knowledge of law and legal systems, to find out the defects present in a legal system
and the ways to rectify it and probably, to contribute in the development of a unified legal
system.

19
Ibid.