English, French & German Comparative Law

Raymond Youngs

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780415540667
• eBook ISBN: 9781317811695
• Edition: 3
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

This comparative analysis considers the differing approaches to important areas of law in England, France and Germany. In particular, constitutions, sources of law, rights against the state to prevent abuse of power, and rights of private individuals and organisations against each other in tort and contract are examined and compared, and the system of courts is also considered.

Updated and revised, each sub-topic is introduced with the relevant material in the English system, allowing easy comparison and assimilation of the other systems. The text includes translations of relevant French and German codal material, and references to relevant cases from all of the jurisdictions. This new edition includes constitutional changes in France and the United Kingdom, in particular the new procedure for challenging existing legislation before the Conseil constitutionnel. It examines the consequences of the Lisbon Treaty, as well as other recent codal and legislative changes. Comprehensive and topical, the text explores a wide variety of new case law on issues such as: preventive detention; the use of evidence obtained by torture; the balance between suppression of terrorism and personal freedom; the internet; email monitoring; artificial reproductive techniques; use of global positioning systems (GPSs), deoxyribonucleic acid (DNA) and closed-circuit television (CCTV); the wearing of religious clothing (such as the headscarf) and symbols (such as the cross); circumcision; methods of crowd control; the prevention of human trafficking; the preservation of privacy, especially for celebrities; and the legality of pre-nuptial agreements and success fees for lawyers.

Designed for students on comparative law courses, this textbook will also prove valuable to students who are familiar with English law, but require a readily comprehensible introduction to French or German law.

1
Constitutions

I Introduction

The existence of a government of a country implies a monopoly of force: orderly control of human activity requires that, in relation to any particular issue, force should be exercised in society by or with the authority of one set of co-ordinated organisations only.¹ Such organisations should, however, act in the best interests of the society that they control. In the Western world, this is thought to necessitate that certain personnel and policies of a government should be chosen by the population at large, but popular control of a government cannot be unlimited. Efficiency and the rights of individuals, for instance, may require such limits.

A constitution consists of those rules of a legal system that regulate the government of a country and, in particular, the nature and relationship of its constituent parts to one another and the basic rights that its citizens have against it. These rules are considered to be more important than the other rules that make up a legal system and will therefore normally be regarded as harder to change, although this view may be reflected in political attitudes rather than legal rules.²

There are three broad functions of a government, according to the traditional view propounded by the French political theorist, Montesquieu:³ legislative (making laws); executive (administering laws); and judicial (interpreting laws). Montesquieu’s view was that these functions should not be concentrated in the same hands, otherwise tyranny will result.

The basic rights of citizens are things such as freedom of speech and freedom of movement, which a government should be capable of taking away only for good reason.

It is obvious that there are tensions at the heart of any constitution: democracy, efficiency and effectiveness, freedom, justice, the rights of individuals and the views of local communities do not necessarily pull in the same direction. One purpose of a constitution is to ensure that these factors are not ignored. The existence of a constitution is a far more satisfactory method of achieving the right balance than leaving it to the people to challenge the government’s monopoly of force when they feel that things are going wrong:

As we cannot, without the risk of evils from which the imagination recoils, employ physical force as a check on misgovernment, it is evidently our wisdom to keep all the constitutional checks on misgovernment in the highest state of efficiency, to watch with jealousy the first beginnings of encroachment, and never to suffer irregularities, even when harmless in themselves, to pass unchallenged, lest they acquire the force of precedent.⁴

Constitutional law is a form of public law, which is the law governing the exercise of public authority. The other major form of public law is administrative law. It is difficult to draw a dividing line between the two. There is, however, a maxim by a German author that states ‘Constitutional law passes, administrative law remains’.⁵

This has some validity in relation to Germany and France, where constitutions have come and gone, but administrative law has not undergone dramatic change. It does not work for England, where the constitution has not undergone complete change since 1688, but administrative law has really developed only since the Second World War. It is perhaps better to say simply that constitutional law relates to the fundamental issues and administrative law to the other ones.

For the purpose of the part of constitutional law that relates to the organs of government, reference will be made to the United Kingdom rather than England. Although the legal systems of Scotland and Northern Ireland are different from the legal system of England and Wales, some of the organs of government apply to the whole of the United Kingdom and it would be artificial to talk about the ‘English constitution’ as if it existed on its own.⁶

II Written or Unwritten

Constitutions are usually written down in an authoritative form. There are two particular reasons for this: one is to ensure that there is no doubt about the content of constitutional rules; the other is that it is generally felt, as I have said, that constitutional rules are more important than other legal rules. This feeling manifests itself in two special features that constitutional rules usually exhibit, as follows.

• (a) A particular government will not to be able to change the rules about how it could lose power, the basic procedure by which laws are made, or the fundamental rights of citizens, for example, as easily as it can change other laws.
• (b) If there is a conflict between the kinds of rules referred to in (a) and other laws, the other laws must give way.

Both of these possible features of constitutional rules will be considered later; the immediate point to be made here is that these features are dependent on constitutional rules being readily distinguishable from other legal rules, and that this can be done satisfactorily only if the constitution is written down in an authoritative form. A further point, which will also be considered later, is as follows.

• (c) Countries often have a special court to deal with constitutional matters. This is really possible only if the extent of that court’s jurisdiction is defined in a written constitution.

1 United Kingdom

The constitution of the United Kingdom is described as ‘unwritten’, but this does not mean that the constitutional rules are not written down. It simply means that they are not all written down in an authoritative form in a single document. Some rules are written down in an authoritative form, but they are contained in a variety of documents and often mixed with non-constitutional rules. Other rules exist, but their precise content is a matter of speculation.⁷

There are three main sources of constitutional rules:

• (a) statutes include those relating to the structure of the state such as the Act of Union 1705 and the European Communities Act 1972, those regulating the organs of state such as the Parliament Acts 1911 and 1949, and those relating to fundamental rights such as Magna Carta and the Human Rights Act 1998;
• (b) case law created in the ordinary courts; and
• (c) conventions, the rules of the constitution that cannot be enforced by a court. They are at least as important as statutes, but must not be inconsistent with statute law or case law.⁸ They are established by practice, but can be of comparatively recent origin, for example the convention that the Prime Minister must be a member of the House of Commons was finally established only in 1963.

2 France

The French Constitution is written. The current form of the Constitution came into existence in 1958.⁹ This Constitution, however, also incorporates¹⁰ the rights of man and the principles of national sovereignty, as defined in the Declaration of the Rights of Man and of the Citizen 1789,¹¹ confirmed and completed by the Preamble to the Constitution of 1946.¹² It also includes the Environmental Charter of 2004. Certain fundamental principles recognised by the laws of the Republic are also regarded as having constitutional status, such as the right of association.¹³

3 Germany

The German constitution is also written. Its present form is the Grundgesetz¹⁴ (the ‘Basic Law’) created in 1948, in respect of West Germany. It was intended to be only temporary, until a new constitution was adopted democratically, and its preamble called on the German people to achieve in free self-determination the unity and freedom of Germany. However, when Germany was unified in 1990, the Basic Law was extended to cover the whole of the country, with a few amendments.¹⁵ There are also constitutional principles, such as separation of powers and proportionality, which are not expressly stated in the Basic Law.¹⁶

Comment

The absence of a written constitution in the United Kingdom is an exception not only to the constitutions under consideration, but also to the vast majority of constitutions. The existence of rules not formally written down is, however, common to all three constitutions (conventions in the United Kingdom, and some constitutional principles in France and Germany). The problem is, however, more fundamental than the mere absence of a written document. Logically, a constitution precedes a government; it therefore ought not to be created by it. In France, the 1957 Constitution was created because of the effect on the Fourth Republic of the Algerian crisis. In Germany, the 1948 Basic Law was imposed by the Allies after Germany’s defeat in the Second World War. No such transforming event has occurred in the United Kingdom. The consequences of this are even more significant. There is no way of distinguishing constitutional law from ordinary law in the United Kingdom so as to ensure that it can be changed only by a special ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface to the third edition
• Preface to the second edition
• Preface to the first edition
• Introduction
• Abbreviations
• Websites and journal sources
• Table of cases
• Table of legislation
• 1 Constitutions
• 2 Legal systems
• 3 Court systems
• 4 Human rights
• 5 Torts
• 6 Contracts
• Bibliography
• Index