One of the first things you notice when you move to France is the difference between the French legal system and the ones we’re more familiar with in the U.S. and the U.K.
For us, it became obvious on our first visits to some of the ruined castles in the Auvergne. We were surprised by the absence of safety barriers and access controls around piles of rubble, narrow staircases, and open pits in many of the ruins open to the public. We have pictures of my wife grabbing our 8-year-old son by the belt to keep him from plunging over the top of a castle rampart.
Clearly these French tourist institutions don’t worry as much as their Anglo-Saxon counterparts about being sued for personal-injury damages. And I have to say that my instinctive first response was…this is GREAT! We found it refreshing to think that people are assumed to have enough intelligence not to climb on a dangerous rock pile or (if they did) that they would be accountable for the consequences of their choices.
That turns out not to be strictly true. Even if I injured myself due to my own stupidity or carelessness, I’d still be covered for medical costs and my salary would likely be protected under French social programs, so I wouldn’t necessarily feel “accountable”. But unless there was some overt act of criminal negligence by the people who run the tourist site, I would not be suing them for damages.
Why? In the first place, the mechanics of the French judiciary are different. According to FrenchLaw.com , “there are no juries whatsoever before the civil courts and large scale damages are virtually unheard of. It is not possible to bring a class action before the French civil courts.” Very little pre-trial discovery is allowed, and most of the arguments happen in documents rather than in dramatic confrontation of witnesses in open court. (In fact, there’s also no oral cross-examination of witnesses.)
French trials, as one observer said, are more like a business meeting than a confrontational TV drama. What happens, though, when there really is a wrong to be addressed? Isn’t there any way to hold a French company accountable if they hurt someone through their negligence? How do I get compensated if a drunk driver rams my car, or if a plumber breaks a pipe and floods my kitchen?
In fact, the idea of a civil penalty for these kinds of problems does exist in France, too…but here’s where the differences between the two systems gets interesting.
French law is based on “the code” – specifically, the Napoleonic Code and all the laws enacted since it went into effect in 1804. It attempts to specify everything that might possibly go wrong, how it should be handled, and what penalties to apply when something does go wrong. Judges don’t have as much leeway to interpret the law, and there aren’t any civil juries.
The American and British systems are derived instead from common law. Rather than anticipating every possible bad thing that might need to be regulated and writing it into law, we rely on historical precedents and on the judgment of judges and juries to decide what’s right and what penalties to apply. Our system is adversarial, confrontational, and constantly evolving as new cases are decided.
So, in France you almost never hear about the kind of “big ticket” lawsuits that we see so often in the U.S. – no “spilled hot coffee on myself at McDonald’s” or “big tobacco companies manipulated me into smoking”. If a company or a person violates one of the detailed specifications in the legal code, they are prosecuted for a criminal act. If the criminal act causes injury to someone, the victim can pursue a civil action to be compensated. And everything is often handled all at once inside the criminal case – insurance companies effectively become parties to the action, and if the accused is found guilty the judge can decide then and there how the victim should be compensated.
Mike France talked about why some people find this approach more attractive in Business Week back in 2005. “What do they do in Germany, Belgium, or France when sport-utility vehicles roll over? For starters, the victim's medical expenses are covered by nationalized health care. And lost wages are largely picked up by employers or the government. So nobody needs to go to court to be made whole -- and punitive damages aren't allowed. It's basically a no-fault system that renders plaintiffs' lawyers irrelevant, eliminating most of the expensive features of the U.S. adversarial system, such as pretrial discovery.”
The cost of this approach? Everything must be specified in detail and written into the legal code. That means a much heavier body of regulation. The choice seems to be between less regulation and more litigation, or more comprehensive codification and less court action. There’s certainly an argument to be made that some middle ground would be an improvement over both the French and the American/British systems.
If you’re interested in learning more about these differences, the University of California has a helpful article on the subject. In the meantime, though, as you’re exploring France, keep the differences in the back of your mind. You may find it easier to stay off the rock pile or grab your 8-year-old by the belt than to sue for damages later!
Have you ever had an encounter with the legal system in France? What surprised you the most? Please share your experiences in the comments section below.