Legal education in France and England: a comparative study
Andrea Nollent, Sheffield Hallam University
“Après le pain, l'éducation est le premier besoin d'un peuple”
This paper focuses upon what can be learnt from assessing the experience of students of different nationalities and cultures who study in the same educational context. The context in question is the study of law in the French and English university system under a dual degree structure called the LLB (Hons) Maîtrise en Droit Français. This degree operates as a partnership between the University of Paris XII St Maur and Sheffield Hallam University.
Students on the degree are recruited from each university and study together for four years, at the end of which, if they are successful, they are awarded an LLB from Sheffield Hallam University, and a Maîtrise en Droit from the University of Paris XII.
The focus of this paper is the principal differences between the two educational and legal systems which may impact upon the experience of the students. The aim here is not to suggest changes within each system this would be an abuse of the underlying purpose of the programme, which is to expose students to diverse cultural and legal contexts in which they can enhance their intellectual, personal and professional experience and capacity. Rather the aim is to learn from the experience of these students how best to select and prepare students for the programme and ensure that the diversity within the systems can be met by the students with adequate forethought and reflection.
This paper forms the first step in an extensive study of Anglo/French higher education using legal education as a focus. Considerable work has been undertaken by Broadfoot et al (1993 and 2000) on the education systems of England and France at primary and secondary level. These reveal the extensive differences between the two systems in countries whose common geographical location within Europe and historical interconnections would suggest many similarities.
“ They have revealed deeply rooted differences in national educational priorities, in epistemologies, in institutional traditions and in professional values. They provide overwhelming evidence of the importance of culture in shaping the organisation and processes of education within any one education system. ”
In this paper the focus is upon an overview of the teaching and delivery of legal education in English and French universities using Sheffield Hallam University and the University of Paris XII as examples of the two systems. The first cohort of students graduated from this dual degree in July 2001. In May 2001, immediately after their final examinations in Paris, all of the students were interviewed and asked about their experiences and impressions of the course and studying law in the two systems. Their comments are inserted throughout this paper.
The interviews were conducted with each of the final year students on the same afternoon. Each interview took half an hour and followed the same format. There were seven graduating students and all agreed to be interviewed. The students were informed of the purpose of the interview and that the material would form part of legal research. They were all extremely enthusiastic about participating in the interviews and were keen to continue as part of the research programme as they progress in their legal careers. The students were assured that all information provided by them would remain anonymous.
The students were asked the same ten questions and each student responded to all questions. The majority of the responses were extremely similar, and those included in this paper are largely representative of the whole. They were asked to avoid making statements about which system they thought was 'best', rather to focus on the methods which allowed them to perform to the best of their abilities. The students were both French and British, with one dual national. The questions focused on the main differences and experiences that the students perceived between the two education and legal systems. This included questions relating to teaching and assessment method, language preparation, theoretical differences and difficulties encountered and the advantages and disadvantages of the programme. Only a selection of the responses are produced here.
The provision of university legal education in France and England
As in England, the study of law at French universities is not exclusively aimed at training lawyers. Rather it aims to provide a more general education that will typically include history, philosophy, economics and languages as well as law. This broadening of the law syllabus was brought about largely as a result of the 1997 legislative reforms in France. The impetus for the reform of higher education was the very high drop out rate of students, particularly at the end of their first year of studies. The reforms divide the academic year into two semesters and introduce a foundation programme in the first year of study which includes classes on study skills and law and non-law subjects. At the end of semester one students can confirm their choice and enrol on a law degree, or they can opt to study a degree programme in a related area.
There is very little evidence so far about the success of the reforms. Typically up to 1000 students will enrol onto the first year of the law degree at the university of Paris XII and up to 50% will not progress beyond the first year of study, failing their examinations at the end of year 1.
The state is actively involved in the design of degree courses in France, and consequently there will be far less differentiation between law degrees in France than would be the case in England. All degrees must be approved by the Ministry of Education, who can require more units to be delivered if it is felt that the degree is too light in substantive law. The Ministry of Education is concerned about the structure and content of degrees rather than assessment and delivery, which is strictly the preserve of the individual academic. Any changes have to be approved by the Ministry and the approval is periodically reviewed.
There is no input from the law professional bodies into the content and delivery of law degrees in France. This takes place at a later stage, although again, regulation comes from the state rather than the professional bodies. This contrasts markedly with the system of legal education in the UK, where the professional bodies require certain subjects that they deem to be 'core' to a law degree to be included in an LLB before it can be granted qualifying status. In addition to the inclusion of the core law subjects, qualifying law degrees must, from September 2001, comprise at least two thirds law or legal subjects.
The LLB (Hons) Maîtrise en Droit Français
The LLB (Hons) Maîtrise en Droit Français was first validated in May 1997. The programme grew out of a long and fruitful Erasmus partnership with the University of Paris XII. It is now in its fourth year of operation, and the first cohort of students graduated in 2001. A maximum of 20 students are recruited onto the degree in year 1 (ten from Sheffield Hallam and ten from the University of Paris XII). All students begin the course together in year 1 in Sheffield and progress through the four years as a single cohort.
The degree has recruited successfully since it was validated in 1997. Applicants to the degree come from a variety of backgrounds; some are bilingual, some have parents who work in France and have attended international schools and some have standard A level qualifications.
Similar courses do exist in the UK, although they are small in number. The Sheffield Hallam/Paris XII was modelled on the LLB Maîtrise at Kings College London and the Sorbonne in Paris, which has been running for over ten years. The market for the degree is small due to the admissions requirement of at least a grade C or equivalent at A level. This requirement is essential to ensure that students are able to successfully study law in French at the University of Paris XII in years 2 and 4.
Students on the degree graduate with a qualifying degree in English law and a Maîtrise in French law. This enables the students who wish to qualify in the English legal profession to undertake further studies to become a solicitor or a barrister. Those who wish to qualify in the French legal system can continue their academic studies to qualify within the French system. Graduates with this degree will have a high level of fluency in French, which will enhance their employment potential particularly with firms who operate offices overseas. In an increasingly competitive employment environment these students have a great deal to offer; fluency in French, dual qualification in two education systems, extensive knowledge of both common law and civil law systems and the experience of two years living, (often working) and studying in France.
The students from both universities study together for the four years of the degree in the following pattern:
- year 1: Sheffield Hallam University
- year 2: University of Paris XII
- year 3: Sheffield Hallam University
- year 4: University of Paris XII
Students from Paris are recruited by staff at the University of Paris XII in the summer before the start of classes in Sheffield in September. The students are selected on the basis of their Baccalaureat examinations. In addition to this they must participate in a week long selection process, during which they are tested on their fluency in English in both written and oral tests. Students who do not demonstrate sufficient fluency in English are not offered a place on the degree.
Recruitment of students at Sheffield Hallam is on the basis of A levels, and has been reasonably healthy. A clear problem has been the low number of students studying French to A level. (According to the Guardian (5 October 2000) over the last five years there has been a 25% reduction in the number of students studying French to A level.) As the degree requires a high degree of fluency, the requirement of a C grade or above cannot be relaxed. A number of applicants are therefore unsuccessful each year as they do not manage to attain this grade. However to counteract this in the last two years an increasing number of students recruited by Sheffield Hallam onto this degree have been bi-lingual. Evidence from applications for 2002 reveal that this is a continuing pattern.
In Sheffield the degree follows the same core units as the LLB (Hons) (albeit in a different sequence) and thus requires no additional tuition or separate unit provision. The structure is detailed below:
- year 1 (Sheffield Hallam University) - law of contract, constitutional law, elements of law, French/Francais juridique, comparative law, option
- year 2 (University of Paris XII) - civil law, administrative law, foundations of French law, legal methods, French or English, constitutional law, law of property
- year 3 (Sheffield Hallam University) - criminal law, law of torts, equity and trusts, land law, administrative law, French or English
- year 4 (University of Paris XII) - company law, international private law I, special contracts law, European Union law, civil law, criminal law
Students in year 1 at Sheffield Hallam University study the same three cores as students on the other law awards. They must also study the two units, French language and law and comparative law. This provides them with the language skills and basic legal knowledge required for their studies in Paris XII in year 2.
The units delivered at the University of Paris XII in year 2 are all from the Licence programme. Students on the LLB (Hons) Maîtrise form a separate seminar group, although they share lectures with students on the Licence programme. Students continue to study French or English whilst in Paris.
In year 3 at Sheffield Hallam University students study the remaining professional core units (except law of the European Union) plus level 5 French or English. If they have achieved fluency at this stage they can study an option selected from those available at level 3.
In year 4 students return to Paris to study for the Maîtrise. Students study law of the European Union in Paris. This is a core unit for the English professional bodies. Students must therefore complete the four year degree to graduate with a qualifying LLB (Hons) and a Maîtrise in French Law.
In year 2 of the dual degree the students in Paris XII study six law subjects. Each unit adopts a different method of assessment. For example, in civil law I and II assessment takes the form of 100% continuous assessment. In administrative law I and II there is a mixed mode of 50% continuous assessment and 50% oral examination. In constitutional law the model is 50% written examination and 50% continuous assessment. In two other subjects assessment is 100% oral examination.
learly the mode of assessment differs between the two partner institutions. This creates some important issues in the preparation of students in year 1 for their second year in Paris. Time is limited in year 1, as these students are following a full timetable of English law as well as working to perfect their French in preparation for year 2. Students are given tuition on written assessment methods in the first year course of French and Francais juridique. Basic French Law is provided in the comparative law unit. However it has been very difficult to provide assistance in oral examination methods.
Experience has shown that students have great difficulty in oral examinations in year 2, although they appear to cope much better in their final year in Paris. Clearly language will be a factor in performance in both oral and written examinations. In year 1 in Sheffield the pattern has been for the English students to outperform the French students, with the reverse pattern in year 2 in Paris. By year 3 in Sheffield performance begins to even out, and in year 4 this pattern continues.
In fact the picture is much more confused than it appears at first sight. A number of students are bi-lingual, and for them language is not an issue. Students who wish to pursue a career in England and in English law will clearly focus their attention on year 3 of the degree in Sheffield, as this accounts for 65% of marks to degree classification (25% from year 2 and 10% from EC Law in year 4).
The general pattern so far in the degree, with the first cohort graduating in 2001, is that the English based students are proceeding onto the Legal Practice Course (LPC) and the French are going onto further legal studies within the French system. A number of the French students are considering qualification as solicitors in the English system, although no English students have opted to study further in the French system.
These figures are of very limited value as the first cohort of students is small. A clearer picture of student destinations will emerge over the next two to three years.
Degree studies in France are divided into three stages each of which leads to a recognised qualification:
- DEUG - diploma of general university studies awarded for successful completion of the first two years of studies
- Licence - after successful completion of three years of studies
- Maîtrise - after successful completion of four years of studies
After the Maîtrise, students may decide to continue their legal studies. Students who wish to pursue an academic route can study for a DEA - a diploma of advanced legal studies.
Students who wish to pursue a career as a practising lawyer may go on to take professional legal courses as soon as they have been awarded a maîtrise. However, because of competition for places on these professional courses, many will first study for a specialist diploma in legal practice, known as a DESS. These are based at universities and offer a variety of subjects depending upon the route a student decides to take. For example, a student may chose to specialise in criminal law with a view to a career in the police or the judiciary, or in business and tax law with a view to a career in business as an in-house lawyer.
In England, students who wish to pursue a career as a solicitor or barrister must, after completion of a qualifying law degree, pursue a further year's study. Prospective solicitors study the Legal Practice Course (LPC), while prospective barristers study for the Bar Final Examination. Thereafter in both arms of the profession a period of traineeship is required for qualification; two years traineeship for solicitors and one year pupillage for barristers.
The French concept of law
One of the first differences that students of English law will meet when they embark upon legal studies in France is that the French concept of law is quite distinct from the English.
French law, unlike English law, is not seen primarily as a means of settling disputes or restoring the status quo. In France lawyers adopt a more conceptual and abstract approach to legal problems, seeing law as a series of fundamental principles. English law, by contrast, often proceeds on the basis of law as a means of providing remedies for certain cases: "remedies precede rights" as noted by Nicholas (B Nicholas in his preface to Harris D and Tallon D (1989) Contract law today: Anglo-French comparisons (Oxford: Clarendon) and David R (1990) English and French law (London: Stevens and Sons), who suggests that within the English common law system, "remedies precede rights".)
Why does this difference exist? There are number of historical factors that contribute to the concept of law in France which are absent from the development of English law. They include the influence of Roman law, particularly in the revival of Roman law in French universities in the Middle Ages. (This is not to suggest that English law was unaffected by the revival of Roman law. English scholars studied Roman law in European law schools and Glossators from Bologna lectured in England. However, developments unique to England during this period, for example an early centralised legal system and the development of a common law combined with the growth of an active legal profession, meant that Roman law did not take root in England.)
A further factor in this differentiation is the influence of universities. Academics have played an important role as both advisors on the formulation of legislation and the interpretation of legislation. In contrast to the dominant role of the judiciary in the formulation of the English common law, in France the role of the judiciary was much diminished after the revolution.
The concept of legal rules differs between the two systems. In the English common law legal rules are formulated by judges when adjudicating disputes and applied to specific situations. Where distinguishable cases arise a different legal rule may be applied. Within such a system it is difficult for a systematic body of rules to emerge. In the French system the law is formulated by jurists and academics and enshrined by legislation. It is systematic and based on principles. The consideration of these general principles precedes the solutions awarded in specific cases. Contrast this with the "remedies precede rights" position in English law as noted by Nicolas above.
Of course one reason for this difference between the two systems is the revolutionary ideology which permeates the French Civil Code. However, the difference in the philosophical approach of the two countries prior to the revolution is also important. French philosophy prior to the revolution was heavily influenced by the rationalism of Descartes and particularly deductive theory, ie that broad principles are then applied to individual cases. This theory assumes that the material world/universe can be explained entirely on the basis of mathematical physics and that therefore all material phenomena are based on a number of basic principles apply the principles to the case.
In contrast the British philosophical approach of the period was based upon inductive rationale. Leading figures in this arena include John Locke in England and David Hume in Scotland. Inductive theory is based on empirical method. The empiricists believed that all knowledge is derived from experience and that broad principles can only be developed on the basis of inductive observation. The empiricists were sceptical of rationalism, which they perceived as being based upon the assumption of truth regardless of underlying experience. Thus French law lays down a number of precepts which are deemed to be universally valid. The common law in contrast seeks to provide solutions to individual disputes rather than lay down universal rules of conduct.
This fundamental difference in approach leads to considerable differences in the way in which French law is both taught in the universities and the way in which students learn the law. This is true even though frequently and increasingly the solutions to legal problems are substantially similar in France and England but are reached via different philosophy born of diverse historical and political influences. (See Bell J 'English law and French law: not so different?' [1995] CLP 63, 86-90 and Legrand P 'European legal systems are not converging' [1996] 45 ICLQ 52,74-8.) Thus English legal culture is concrete and pragmatic, whereas French legal culture is impregnated with what Antoine Garapon calls the "quest for truth state of mind" which is abstract and dogmatic. (See Garapon A 'La culture juridique française au choc de la mondialisation' in Le juge et le jugement dans les traditions juridiques Européenes sous la direction de R Jacob, Collection Droit et Société, LGDJ, 1996.)
One manifestation of this focus on dogma rather than dispute resolution in France can be seen in the limited possibilities for alternative dispute resolution and contractualisation of litigation outside the commercial sphere, whereas this is highly developed in the English system. Thus in English legal education students are applying law to facts to provide solution. The system appears to have a more practical focus as distinct from the theoretical approach adopted in France. One of the graduating LLB Maitrise students commented:
“ I can imagine from studying law in England what it must be like to practice law. After studying law in France, I have no idea what the practice of French law must be like. ”
Moving from the philosophical to the practical differences between the two systems, the principal distinction is the written constitution of the 1958 French Fifth Republic. Thus the highest source of law in France is the Constitution. Proposed legislation that threatens the underlying principles of the Constitution can be blocked by the Constitutional Council if it conflicts with the fundamental principles recognised by the laws of the Republic (as referred to in the Preamble to the Fourth Republic).
After the Constitution, legislation is principal source of law. Case law does not enjoy the same prominent status in France as in England. This was an essential part of the revolutionary settlement of France and is today expressed in Article 2 of the French Constitution of 1958 (the Fifth Republic): (France)&is ruled by the principle of government of the people, by the people and for the people. Thus the 'people' elects parliament to legislate and not the judiciary.
Article 5 of the Civil Code of 1804 states: Judges are forbidden to give a judgment in general and regulatory terms in the cases which are submitted to them. Thus the judiciary is prohibited from establishing precedents to apply to future cases. Article 1351 reinforces this. It provides that a precedent may only be applied in the following exceptional circumstances: A judgment only binds the object of the judgment. The thing requested must be the same; the request must be based on the same case; the request must be between the same parties, and brought by them in the same capacity.
Clearly case law in France occupies a radically different status in France to that which it enjoys in the English legal system, where in areas of law where there is little or no statutory provision (for example areas of the law of torts and contract law) case law remains the principal and binding source of law. This poses interesting questions of technique for students such as those on the LLB Maîtrise, who have spent the first year of their studies in England learning about the vagaries of the English common law and the unwritten constitution of the UK.
In fact the status of case law in France is not as it seems on first reading the Code civil. Clearly no written code can address all possible legal questions and cases will arise for which the Code has no ready provision. Increasingly case law is used as a source of law in France. This can be seen particularly in the case law of the Conseil D'Etat, which deals with administrative law, an area which has not been codified and where gaps have appeared which have been plugged by the Conseil. Note however that a judicial decision can still not be based entirely on a precedent case; some other legal authority must be used as the basis for a judgment. Consequently lower courts will prefer to follow the decision of higher courts so that all cases are treated alike, although the is no obligation to be bound by the precedent of the higher court.
A further major difference between the two legal traditions that the students have to cope with includes the legislative techniques used by the different systems. In France the legislature adopts the main outlines of the legal rule, leaving the executive to work out the details through secondary legislation. The influence of the French system in this regard is clearly seen in the legislative techniques of the European Union, where this model is used. This contrasts with the English method, where the legislature drafts laws in a highly detailed manner, leaving as little as possible to be regulated by the executive.
In France the court system is highly specialised. Specialised courts focus their work on specific areas of dispute, for example administrative courts and commercial courts. Administrative law occupies an entirely different court system and is completely separate from the civil and criminal court structure. As mentioned above, the Conseil D'Etat is the highest administrative court, whereas the Cour de Cassation is the highest court for civil and criminal law disputes. Due to its historical development the structure of the administrative courts does not mirror that of the criminal and civil courts, and its procedures are distinct. For example, unlike the civil courts the administrative court system does not guarantee the right of appeal on both fact and law to every case, as for some matters the Conseil d'Etat is the judge at first and last instance.
How do these differences in legal method and culture effect the learning of law in the two systems?
The theoretical absence of the doctrine of legal precedent in France profoundly effects the way in which students are taught at university. When students have to resolve a sample problem question, they will be asked to explore only one avenue of the law (exceptionally two), on the understanding that each situation is governed by a sole corresponding rule. Graduates of the King's College London/Université de Paris I Panthéon-Sorbonne LLB Maîtrise have pointed out some clear differences in the learning of law in the French and English systems. (See Cohn and Garde (1999) 'Mutual influences of English and French legal cultures through legal education' in European Review of Private Law 3 381-387.)
According to the students, in France:
“ The law is not a set of tools to be stretched according to the parties' needs, but the expression of the true, adequate response to a problem. This absence of pluralism in legal solutions is a clear manifestation of the dogmatic character of French legal culture. ”
“ Students of English law, on the other hand, do not see any one legal solution as exclusive. They will attempt to stretch rules and apply them to the given situation in a utilitarian and pragmatic approach to law. This is a legal method rather than a legal theory. The student of English law will study fewer law subjects than the student of French law. "English students learn a skill, and not a set of rules". ”
According to the Sheffield /Paris graduating students:
“ The theoretical approach adopted by the lecturers in France requires a much more sophisticated and abstract level of understanding, whereas in England the common law subjects require an understanding of the case law and its application but little or no theoretical context. ”
This is further evidenced by the comments of one of the French students on the programme:
“ I think in France we learn how to learn and how to think whereas in England we learn how to do things with facts. ”
A particularly interesting example of the difference in legal method and how this manifests itself in university teaching can be seen in the teaching of European Community Law. In France much greater emphasis is placed upon the EC treaties than in England, where the jurisprudence of the Court of Justice is closely studied. In France EC law textbooks present the treaties first, followed by very short annotations on the case law of the Court, often in tiny print. In England, EC law textbooks do include the treaties but thereafter are devoted to extensive consideration of the jurisprudence of the Court. EC law casebooks are used extensively in UK universities as they would be for other common law subjects, thus reflecting the case law focus inherent in the teaching of law and legal method.
The differences between the English pragmatic case law approach and the theoretical approach to the study of law can be seen in the method of teaching law. Using EC law as an example we see that in France students of EC law will focus on the treaties and they will be examined, both in oral and written examinations on the theoretical and historical background to the treaties, the content of the treaties and the jurisprudence of the Court. In the England, whilst these areas are covered in most EC law syllabi, invariably focus will be placed on the solution of problem questions which require the student to apply the treaties and case law and propose a solution. This will require less detailed discussion of the treaties themselves and requires the student to adopt the legal method inculcated in students of English law in applying precedent case law.
Legal method in France
Academic writing and the presentation of legal work is fundamentally different in the French and English systems. This has posed serious problems for staff and students on the joint degree programme. Clearly students must be trained in French legal method prior to their commencement of study in Paris in year 2. Therefore in year 1, in addition to studying French and French law, they must be given training in the writing of essays and case commentaries. It is therefore imperative to incorporate into the first year programme visiting lecturers from the French partner institution to provide tuition in this method. Support (both from a linguistic and structural perspective) must be continued in year 2 when the students are in France.
The French legal essay is highly prescriptive, following a rigid plan which is articulated around two main sections. These sections are divided into two, and sometimes three subsections, which are in turn divided into subsections the parts of the essay. Each section and subsection starts with a letter or number and a sub-heading. Each section must be approximately the same length. The transitions between each part of the essay are important, each one ending with a few lines introducing the next part. In addition to this prescribed stylistic presentation of the essay, the content of the work is also clearly defined in France and is noticeably different to the essay or problem question method employed by students of English law.
In France students will be given an essay title which may appear very broad. However this is not an invitation to the student to write everything there is to know about the topic. Rather the student will devise a plan that presents a particular picture or a specific angle on the subject. There is no single right plan for the essay, the student selects a plan and provides the reader with his or her view of the subject. This is radically different to the approach to the writing of essays in law in the UK where the 'angle' or critique is more clearly articulated in the essay question, particularly in work at levels 1 and 2 of the LLB. Thus in France the essay presents a view, rather than an exhaustive critique. Clearly the view adopted in the plan must be tenable and the main part of the essay should provide arguments to justify this position.
The introduction should unfold the line of reasoning that has led to the choice of plan. It should lay down the technical boundaries of the essay. The plan is then presented by stating the two main parts of the essay. The body of the essay begins with a heading and subsection, with a short summary of what will be discussed in the subsection. The subsections contain the detailed discussion of the essay and are the longest sections. The two main sections follow an identical structure. They are however entirely independent of each other. Each part only treats one idea. The first idea must be different to the second and the student must never repeat what has already been stated. They follow a logical sequence, with the first section providing a discussion that leads to the point to be addressed in the second section. The conclusion should be brief. It is not meant to provide a summary of the argument presented in the body of the essay. Rather it should lead to a further question, or a wider debate.
After the legal essay the second written method of assessment on academic law studies in France is the case commentary or commentaire d'arrêt. The commentaire is frequently used in traveaux dirigés (seminars or tutorials), and will be part of continuous assessment if that method is used in the unit. On the LLB Maîtrise programme extensive use is made of the commentaire in continuous assessment in units in years 2 and 4. This method is not employed by English lawyers, and it is imperative that students master this technique before they begin their studies in France in year 2 of the dual degree programme.
The first important point to consider when reading French cases is the structure. Each case begins with Les visas, (having seen&). It then cites the legal provisions which are at the centre of the dispute. Next comes Les attendus, which form the main body of the judgment. They present the facts of the case, the arguments of the parties and develop the legal propositions upon which they rely.
For the common lawyer used to lengthy legal reasoning by a number of judges, including dissenting judgments, the method employed by the French judiciary is astonishingly brief. In court judgments in France the judges remain anonymous and there are no dissenting judgments. This corresponds with the theory discussed above that law is being applied and not created and by a court and not an individual judge.
The final part of the judgment is Le dipositif, the actual solution of the matter before the court. This equates with the order that an English judgment would make.
Having learnt how to read a French judgment the student must then understand the method required to write the commentaire. After a general introductory sentence, the introduction should summarise in chronological order the facts of the case that gave rise to the litigation. The summary is an analysis of the claim being considered by the court in question. The parties should be referred to by their names rather than as the plaintiff or appellant, as their status will vary during the course of the proceedings. Next the procedures that have been followed must be outlined in their chronological order, ie which court heard the case; when, why, what was the decision?
Following this the student must provide detail of the legal question that the court has had to answer. To do this the student needs to look at the main legal reason (Les attendus) given by the court for its judgment. The legal problem then has to be formulated as a question in an abstract and theoretical way. Next the student must provide the solution to the legal question posed. Again this will be extracted from the main legal reason of the judgment, and if it is not too long can be quoted in full or summarised if too long. The legal text upon which the solution is based must be specified, for example an article of the Code civil.
Thereafter the body of the commentary is divided into two and sometimes three sections. A common structure is to look for the principal reason adduced for a judgment (in Les attendus) which was given as the solution to the case in the introduction. This is then divided into two (or three), each part forming the basis for one of the main sections. In the sections the student must compare and contrast the reasoning adopted in the judgment with that of academics and other courts. The status of the judgment must be clearly identified, ie whether it is a judgment of principle and changes the established law, or whether it illustrates established law. A conclusion is not compulsory.
Clearly the rigid nature of the essay and the commentaire differ from the method of academic legal writing in the UK. where the traditional academic essay follows a less formal model. On closer scrutiny both systems require students to produce a similar consideration of the law with each distinct system. However it is essential that students from each country are trained in the expectations of the other prior to their departure.
Teaching method
The students on the LLB/Maitrise programme found the most striking differences between the two systems was the teaching method employed by lecturers and tutors. They found that the seminar tutors were 'gentler' in their approach in Sheffield: We felt less compelled to prepare for seminars in England.
In Paris the seminar tutors were extremely rigorous in their questions in seminars: If don't prepare adequately in France, tutors make you feel very, very bad. Others found the seminar experience to be very scary indeed!
The manner in which tutors address students is very different between the two systems. In France the approach is: Very formal; we are addressed as mademoiselle/monsieur and this reinforces the formality and the expectation to contribute. The students found that the seminar style is much easier in England; tutors ask "what do you think?" They invite answers and encourage responses.
There was a mixed response amongst the group when asked in which system/method they felt that they performed to the best of their abilities. The English students placed great weight on what they termed the humiliation factor in the French system, ie if the student had not done the work in seminar the tutor would grill them further for an answer. When asked whether this was a culturally specific method rather than one based on the particular personality of the tutor (as clearly they acknowledged that this method is adopted by some tutors in Sheffield) the students were unanimous in their conclusion that this rigour in seminar method was particular to the French system and all pervasive.
It should be noted that this more rigorous method adopted by the French tutors can be explained by the fact that in many of the units in Paris assessment is based on continuous assessment of seminar work. Continuous assessment of seminar contributions means that all students attend and all students prepare as they have to submit the work at the end of the class.
Students commented that lectures are much longer in Paris (some last 2-3 hours) than in Sheffield and that the lectures in Paris were less formally planned.
“ Lectures are highly theoretical in France. There is little or no use of teaching aids; no PowerPoint, no overhead projectors. No attempt is made to summarise the principal issues. Students are expected to do this themselves. It is much more demanding; we have to respond by ensuring that work is covered due to the system of continuous assessment in seminars. ”
The students (independent of the issue of language) unanimously found the learning of the law more difficult in France. They made a number of interesting observations about the teaching of law which appear to challenge the established view amongst legal academics in England that the 'rote' learning of law is somehow easier than applying the law:
“ In England we have to apply the law to facts. It is harder to learn everything there is to know about the law than it is to apply it. ”
And again:
“ In England you have to understand the law, as you have to apply it to practical cases. In France you have to learn all the law this is much harder" ”
The students were asked to what degree they felt that the teaching style is influenced by the nature of the legal system in France and England. On the French system they commented:
“ It is not the legal system itself that is important; rather the perception that the lecturers have of their role. They [the French law lecturers] are very clever people who communicate their knowledge on their terms. In England the tutors are more selective and teach how to learn. ”
Students also commented on the differences between the two systems in the method of assessment and examinations:
“ Oral examinations are very hard as you are given a question to answer and cannot negotiate it, whereas in an examination in the English system you can select (to a certain degree) the questions that you want to answer. ”
“ The oral examinations can be unfair, as students are not always asked the same questions, whereas in a written examination students are all treated the same. ”
The students also commented on the academic and pastoral support provided in the two systems.
“ In England tutors are far more likely to provide support for students who are experiencing difficulties as many students are living away from home for the first time. In France the lecturers do not see this as their role. ”
“ In England we were given everything on a plate. We had to work hard, particularly in year 3, but we knew what we were working towards. We were told what to learn and went away to learn it. ”
Students were asked whether they felt that they had benefitted from the degree and from studying law in the two systems. Their comments were mixed.
“ I have benefitted socially and my understanding of the law is much enhanced, but it has been a very tough four years. ”
“ I have enjoyed studying the two systems of law, but I have had no time to draw comparisons or conclusions about them. ”
One English student commented:
“ If I can sit in front of a French professor of law and be grilled on his area of specialism, what is there left in life to be frightened of? I can do anything! ”
Another student commented:
“ I am a more rounded and more confident person than I would have been had I not studied on the dual degree. I have a deeper understanding of law and the cultural and political context of law. ”
Conclusion
The study of other societies and legal cultures is a valuable academic pursuit in itself. Even without accreditation from the other system the study of comparative legal systems is an invaluable asset in the understanding of our own legal culture. According to Ehrmann (Comparative legal cultures (1976)):
“ ...only the analysis of a variety of legal cultures will recognise what is accidental rather than necessary, what is permanent rather than changeable in legal norms and legal agencies, and what characterises the beliefs underlying both. The law of a single culture will take for granted the ethical theory on which it is grounded. ”
The LLB Maitrise is an ambitious programme that seeks to develop comparative legal study and provide dual accreditation. Programmes such as these are complex and immensely time consuming, both in the preparation of students and the structural balance of the programme.
I have aimed in this paper to outline the main differences in the law and the nature of university legal education in France and England. These differences are very real for the students who embark upon four years of studies on the LLB/Maitrise. Preparation is essential, particularly in the method of legal writing, the basic concepts of law and the teaching and assessment method in each system. Students must know what to expect and be prepared for the different systems. Universities must consider carefully the immense commitment in time and energy in the planning and co-ordination of degrees of this nature prior to embarking upon their delivery. They should not be undertaken lightly.
To understand a legal system "you have to know where it comes from and what its image of itself is" (Merryman J 'Civil law tradition AJCompL 35 (1987) 438. Students on the dual degree programme should, on graduation, have a unique insight into two legal systems and a deep understanding of the context in which the law develops and operates.
