The law, written source of law

In the broad sense, the law encompasses all texts emanating from the legislative and regulatory powers.

Strictly speaking, the law comes from the legislature. It is voted by Parliament.

Article 34 of the Constitution defines exhaustively the matters that fall within the scope of the law: civil rights and civil liberties, nationality, state and capacity of persons, matrimonial regimes, inheritances and liberalities, determination of crimes and offenses and their penalties, regime of property, real rights and civil and commercial obligations, labor and social security law, tax law …

Matters outside the scope of the law are regulatory in nature. It is the government that has the power to draft the texts that concern them. These are the orders of the President of the Republic, decrees and orders.

Article 39 of the Constitution states that the initiative of the laws belongs concurrently to the Prime Minister (draft law) and to the members of Parliament (bill of law).

In principle, the law is not retroactive, that is to say that a new law can not apply to situations or effects prior to its entry into force.

There are exceptions to this principle: expressly retroactive law, interpretative law, softer criminal law and procedural law.

In addition to state texts, there are also treaties that are agreements between states. Some regulate one or more subjects, others unify certain branches of law, the latter create supranational bodies.

At the legal level, for France, the most important supra-national texts come from the European Union. It is :

  • Regulation: Act of general scope, of direct application in the Member States
  • the directive: an act which imposes on the Member States a goal to be achieved within a certain period. They must transpose the text into their national law
  • the decision: an act imposing obligations on a person or class of persons
  • the recommendation: an act which invites Member States to act with a view to achieving a specific objective

Given the multiplicity of texts, a difficulty may arise in case of contradiction between them. This pitfall is avoided because of the hierarchy of sources of law, which is as follows:

TEXT

CONTROL BOARD

Constitution

The Constitutional Council , seized before the promulgation of a law or the ratification of a treaty: controls their conformity with the Constitution

treaties

Administrative or judicial courts, as the case may be, in a lawsuit where the parties invoke the non-compliance of a law with a treaty

Lois

Administrative courts seized of an appeal for abuse of power against an administrative text contrary to a law

Regulations – Decrees – Orders

Administrative courts seized of an action for abuse of power against an administrative text contrary to a higher administrative text

A lower category text can not therefore be in contradiction with a higher category text to which it is subordinate.

Illustrations of this principle are legion and often relevant. the CPE Act is a perfect example.

We will be interested in the next article in the thick of the subject of our profession: our daily practice of law which influences the jurisprudence of our jurisdictions.

Jurisprudence and the role of the lawyer


After talking about the law in its broadest sense, it was time to get back to the heart of the matter and to highlight the pride of our profession: our contribution to jurisprudence.

Indeed, it is easy to notice by reading a law or by opening a code (red, blue or orange, the choice …) that the understanding of an article of law is not more obvious .

Example: article 2279 of the Civil Code: in fact of furniture, the possession is worth title : succinct and lapidary as affirmation and somewhat obscure (I will return there besides in a next article in a short time)

Another example: article 514 of the Civil Code: property is immovable, or by its nature, or by its destination, or by the object to which it applies

Lawyers contribute to the creation or interpretation of the rules of law by proposing solutions that, if they are adopted by the courts, form the case law.

Jurisprudence is the work of the courts. This is the usual solution to a particular point of law. To be able to speak of jurisprudence, three conditions must be met:

  • the hierarchical position of the court that has adopted the solution: the case-law emanates most of the time from the Court of Cassation which, through the mechanism of the cassation and referrals, imposes its vision to the lower courts.
  • the wording of the decision that adopted the solution: indeed, one distinguishes the judgments of the case (which remain very factual) and of principle (which are written in very general terms as to the principle applicable to the resolution of the dispute). It is obviously the decisions of principle which constitute the essence of the case law on a given point.
  • the repetition of the solution: there is a juriprudence on a given question when a certain number of decisions have ruled in the same direction on this question, sometimes over several decades, or even more than a century.\

The case law fulfills two roles:

  • she interprets the law: it is often imprecise or obscure.
  • it fills the gaps of the law: sometimes even, it brings no solution to a given problem.

However, Article 4 of the Civil Code prohibits judges from denying justice: "the judge who refuses to judge, under the pretext of silence, the obscurity or insufficiency of the law may be prosecuted for denial of justice" . A judge hearing a case must therefore decide the dispute and make a decision. For this, he can refer to the general principles of law, the spirit of the law, equity, logic …

Case law is a source of law to be taken cautiously, because of its two major "flaws":

  • it has no binding character: a jurisdiction is never bound by the solutions it or other even higher jurisdictions have adopted in the past. Turnovers of jurisprudence are always possible even on given points decided, a long time ago.
  • it is not general in nature: judicial decisions have only relative authority. They only apply to the parties to the lawsuit and not to third parties. Jurisprudence is not the repetition of a rule applicable to all but a sum of individual decisions.

These two "flaws" are perfectly illustrated by a decision of the Court of Cassation of 7 January 2003 (n ° 00-46.476) which recalls that "the legal security, invoked on the basis of the right to a fair trial provided by the article 6 of the European Convention for the Protection of Human Rights, can not devote an acquired right to immutable jurisprudence, the evolution of the case law pertaining to the office of the judge in the application of the law. "

These two "defects" are also illustrated by Article 5 of the Civil Code, which states that "judges are forbidden to rule by general and statutory provision on the cases submitted to them." This is the prohibition of the so-called rules. It is strictly forbidden for a court to make a decision by expressly referring to a previous judicial decision.

Does the "free" lawyer exist?

I often hear the litigants talking about my colleagues and me in these terms: the lawyer "free".

Every time, my hair stands on the head!

Indeed, the "free" lawyer does not exist (except in your wildest dreams), write it once and for all.

The fees of a lawyer are paid:

  • either directly by his clients,
  • when the client receives partial legal aid, partly by the latter and partly by the Bar Association,
  • when the Legal Aid Office has granted the client  full legal aid , in full by the Bar Association.

Thus, a lawyer (especially if he wants to be able to continue to practice his profession …) will always be paid for the diligences he carries out in his files.

It is therefore never "free".

There is an idea that also puts nerves in my hands, it is the lawyers assigned to office who are less good lawyers than those who are "chosen" by their clients …

But I will certainly mention it in another post