The Napoleonic Code (French: Code Napoléon; officially Code civildes Français, referred to as (le) Code civil) is the French civil codeestablished under Napoleon I in 1804. … The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws.
To start the analysis of differences and similarities in the British, French and German legal systems, it is worthwhile to describe the origins of the respective legal systems.
European law can be categorized according to different law families. This is the subject of comparative country analysis. August et al. (2009) name these law families ‘family groupings’. While the United Kingdom belongs to the family of Anglo-American common law, German and French legal systems both date back to the Romano-Germanic civil law system.
2.1 The Anglo-American Common Law System
In the common law system the distinction between common law and equity is essential. The jurisdiction in the United Kingdom historically took place in what Subrin (1987) calls a ‘two-court system’, consisting of ‘’common law’, or ‘law’ courts, and ‘Chancery’ or ‘Equity’ courts’.
The development of the common law system can be traced back to 1066 when William of Normands (William the Conqueror) defeated King Harold in the Battle of Hastings. While there was the Anglo-Saxon legal system before, which was based on local communities, William the Conqueror started a process of centralization of law.
Norman kings ruled in the King’s Council (Curia Regis), which was characterized by primitive legislature, judicial power and administrative tasks. On occasion, there were meetings with barons, but more frequently small meetings with royal officials took place. These meetings eventually led to specialization in certain departments and the formation of courts. These courts were established in Westminster and had the name ‘Courts of Common Law’, including the Court of Exchequer (taxation and civil cases), the Court of Common Pleas (cases related to the direct interest of the king) and the Court of King’s Bench, which became the most important court. The courts of common law had three characteristics, namely jury, and single issue pleading as well as the writ system (Milsom, 1969).
To control the overall legal system, judges were sent out from Westminster to the rest of the country. At the beginning they applied local customary law, but more and more this was replaced by a pattern of rules and regulations. When the judges came back to Westminster they discussed the cases, which also increased the establishment of a uniform set of laws. This is nowadays known as common law. The common law system is mostly based on regulations made by the king’s courts and precedent . Precedent is also a main factor in distinguishing Anglo-American Common Law from Romano-Germanic Civil Law, because in the latter bases for deciding cases are codes and prescribed texts (August et al. (2009)). The Court of King’s Bench created the essential fundamentals of common law, because one of its tasks was to control power abuses of the king. This doctrine is known as supremacy of law and is defined by August et al. (2009) as the ‘doctrine that all persons, including the sovereign, are subordinate to the rule of law.’ Generally when a civil action was initiated in common law it begun with issuing a writ, which could be obtained from the office of Chancery, a department of the King’s Council.
These writs became more organized and certain types of procedures developed for different types of writs (Maitland, 1920).
However, the common law system faced some problems, as described by Riches and Allen (2009). These problems included the difficulty for the common law system to keep pace with an increasingly changing society and environment. Also, the only eligible remedy was the award of damages, which was very limited and the writ system followed a complicated procedure. Lastly, courts were bribed and judges did not act impartially when making their judgements. There were increasingly complex procedural rules that had to be taken into account when issuing a writ. As petitions by citizens increased they were handed over from the king to the Curia Regis and in turn to a committee, which were supervised by the Chancellor. In the 15th century the Chancellor or King’s chaplain began to judge petitions on his own in the Court of Chancery and the rules applied in this court were known as equity . Overall as stated by Subrin (1987) ’the development law jurisprudence (…) reflected a very different legal consciousness from equity’. Subrin points out that while common law was the ‘more confining, discretionary, and individualized system’, the equity system was connected to ‘the scope of the Chancellor’s discretion and his ability to create new legal principles’. At the beginning decisions largely varied across different Chancellors, but eventually they referred to previous decisions and a fixed body of rules established.
However, the emergence of equity also created some serious problems because common law decisions were often different from equity decisions, which led to conflicts as to which law to apply. In the beginning of the 17th century, James the first ruled that in case of conflict equity should prevail. Overall, equity is not seen as a separate law system but rather as a complement to the existing common law system. Unlike the common law system, which is complete in itself and does not acknowledge the existence of the equity system, equity refers to the common law system and tries to find an alternative solution. While the common law system determines rights not connected to the respective motives of the parties involved in the conflict, equity is based on what is fair and just. According to Riches and Allen (2009) the most important contributions of equity can be found in the recognition of new rights (equity of redemption) and the introduction of new remedies (such as specific performance, injunction, rectification and rescission).
In the 19th century another reform took place. The reason was that conflict emerged because common law and equity were applied in two separate courts, which was lengthy as well as costly, especially if the wrong court was chosen in the first place. The Judicature Act 1873 to 1875 brought the necessary reform and both separate courts were merged to the Supreme Court of Judicature, consisting of the High Court and Court of Appeal (see also point 2). Now it was possible to apply both equity and common law, while equity still prevailed common law. The common law system spread around the world and developed in countries, which were directly linked to the United Kingdom, such as the United States, Canada, Australia and India.
2.2 The Romano-Germanic Civil Law System
The major inspiration of civil law can be found in Roman law, which has the specific characteristics that ‘laws are written into a collection; codified, and not determined, as is common law, by judges’ (dictionary.lawyerment.com). The term civil law originates from the latin jus civile, which can be translated into civils’ law; we can thus infer that civil law basically is the framework of law which deals with the rights of private citizens.
The development of the civil-law system can be traced back to 450 before Christ, when the code of laws applicable to Romans, called Twelve Tables, was incorporated (Stein, 1999). However, the most significant event for the historical beginning of civil law was the codification of the Corpus Juris Civils , initiated by Emperor Justinian (483-565 A.D.) and completed 534 A.D. In the Corpus Juris Civils the ancient Roman laws were written down and therefore preserved (Halsall, 2007). The Roman Catholic Church applied this law code naming it Canon Law, which was utilized in the churches´ courts. When German tribes occupied the Western Roman Empire, parts of the ancient system were replaced by German tribal law. Nevertheless, the personal law principle of the Corpus Juris Civils was preserved, which allowed Roman citizens and their descendants to continue following their known laws.
The ancient system returned in the eleventh and twelfth centuries, when people from throughout Europe went to Italy to analyze the Corpus Juris Civils. After completing the analysis, the jus commune was created, a new type of civil law originating from Roman law, Canon Law and the collection of writings from the previously named analyzers. The jus commune was used at the beginning of the Renaissance.
However, it did not remain long. After a short time, it turned out that the German as well as the Roman law system was outdated. The reason for this was rural as well as economic developments; the newly founded towns as well as the increasing trade raised the need for new laws. So-called pepidrous courts were set up by different merchants and guilds establishing procedures for fair trading. This set of rules and procedures merged into the lex mercatoria , “an international body of generally accepted commercial rules that transcended national boundaries” (August, Mayer, Bixby 2009). Following from the definition, we can infer that the lex mercatoria can be seen as the first international set of trading laws. Traces of it can still be found in law codes today, for instance in the United Nations Convention on Contracts for the Safety of Goods.
Dutch Naturalists and French Humanists were the driving factors leading to the disappearance of the jus commune as the common law of Europe in the sixteenth and seventeenth century. The arguments brought forward by the named groups were that the text was ancient and law should be based on the law of nature. The idea behind this was that laws are basic and fundamental to human nature and can therefore only be made by human reasoning and not based on judicial enactments in an outdated code of laws (Fuchs, 1965). A further factor leading to the abandonment of the jus commune was the increasing nationalism taking place in Europe in the seventeenth century. National literature, national law and national languages became more and more important and eventually led to the disappearance of the old law code. Of the many national law codes established in this time two became the most important: The French Civil Code and the German Civil Code. These were used as a role model for many other countries.
The French Civil Code is based on the Corpus Juris Civilis, described above. However, new ideas, mainly deriving from the French Revolution, were included in the code, the most important being the freedom to contract, the right to possess private property and the autonomy of the patriarchal family (August, Mayer, Bixby, 2009). The French Civil Code is often called Code Napoléon, as the French emperor was heavily involved in writing the piece. French law was put through a filter, simplified, modernised and re-written under his supervision. The code was published in 1804.
The German Civil Code is based to a great extent on the Corpus Juris Civilis. The so-called Pandectists under their leader Friedrich Karl von Sauvigny (1779-1861) can be seen as the main influencers on this code. They planned the new code with a great sense of detail to analyzing the German legal institutions. The pandectists aimed to set up a Begriffsjurisprudenz, which can be translated as jurisprudence of concepts, meaning a massive network of legal rules, principles, and doctrine aimed to reveal the wholeness of laws since the Roman Empire and therefore containing the whole body of law. As this required a vast amount of time, it took 20 years to complete the code until it was issued in 1896. The German Civil Code is generally characterized as being very technical and highly structured. We found the following to perfectly describe how the German Civil Code was written. ‘Legal concepts were defined and then used the same way throughout the entire code. Sentence structure indicates which party has the burden of proof. Elaborate cross-references keep the code reasonably brief and make it a logical and unified system’ (August, Mayer, Bixby, 2009).
In comparing the two, one can say that the French code is much easier to understand for the normal citizen than the German code is. The reason for this is the intention of the writers as to who the code was aimed at. While the French Civil Code was written for the great public, the German Civil Code was aimed at legal experts. Therefore, there is an abundance of legal terminology in the German laws and they are written rather complex and technically precise.
However, even though they appear very different, the two codes actually do have a lot in common. Firstly, they are based on the same principles, namely individual human rights and free hand economics. Further, they are both based on the Corpus Juris Civilis.
The civil law went through fundamental changes in the twentieth century. The codes were revised to a certain extent, they became more alike due to the establishment of the European Union and special legislation and interpretations gained increasing importance.
Public law is not included in the civil law codes and therefore has to be seen separated from the above described movements. Our two countries of interest treat public law different from each other. While France developed the Council of State to be responsible for protecting individual rights and supervising the state´s administrative activities, Germany created several administrative courts to fulfil the same tasks.
To sum up it can be said that there is a significant difference between the development and features of the Anglo-American Common Law System versus the Romano-Germanic Civil Law System. While Common Law is based case law (precedent), most influences by judges and the reasoning is inductive in an adversarial procedure, Civil Law is based on codes developed by law writers, and the reasoning is deductive in an inquisitorial procedure. Unlike in common law, precedent is respected but not required and judging is independent from the government, while in common law it is superior to government. 
As stated previously, the French and German law systems, even though having many similarities as for instance being based on the same principles, still show several important differences. Most of them arise from the human beings they were aimed at when being written, resulting in the German code being much more complex and technically precise than the French one. However, it shows that the two codes are becoming more and more equal in terms of civil law. The main differences still remaining can be found in public law, which is treated entirely different in the two countries.
After further literature review we found that while civil law has become very alike in the countries of the EU, the public law still differs to a great extent. The differences between France, Germany and Great Britain will be described in the following paragraphs.
General distinction between public and private law
3.1 United Kingdom (England)
the distinction between public and private law in England was not clearly made. It developed in the latter half of the 20th century where the idea of a separate public law system developed. The public law system ‘has been associated with the development of the action for judicial review which is the way in which decisions of public bodies must normally be challenged’ (Youngs, 1998).
According to Riches and Allen (2009) public law is ‘concerned with the relationship between state and its citizens’. This includes constitutional law, administrative law and criminal law. Also included are the regulations and rules, which ‘govern the relationship between states’ (Youngs , 1998). In comparison private law is about the relationships between individuals. According to Burrows (2007) English private law ‘is best viewed as concerned with the rights which, one against another, people are able to realize in courts’.
Burrows further divides these rights into three categories, namely ‘Who can have the rights?’, ‘What are the rights?’ and ‘What are the means by which the rights are realized in courts?’. These questions lead to subdividing private law into ‘law of persons’, ‘law of rights’ and ‘law of actions for the realization of rights’, which is commonly called litigation (Burrow, 2007).
French Law can be divided into two parts: public law (droit public) and judicial or private law (droit privé). The private law consists of droit civil, the civil law and droit penal, the criminal law. Public law includes the droit constitutionnel, the constitutional law and the droit administrative, the administrative law.
Contrary to what people might think, not all matters concerning administrative bodies are governed by the administrative courts. Some cases are being decided by the jurisdictions judicaires, the ordinary courts. Further, it is sometimes hard to understand for the normal citizen in which court the respective cases will be tried. The reason for this is that there is an abundance of criteria written down in statutory provisions or agreed upon in special unwritten principles. In case there is no statutory provision or special unwritten principle, general concepts are applied to determine whether a case should be tried in administrative or ordinary courts: is the activity which started the case a public service and if so, which sort of public service is it, is the contract under consideration a public contract, is the case connected to a public asset governed under public law are example questions to be answered.
In France there is a court set up only to decide whether a case falls under public or private law. It is called the Tribunal des Conflicts and is composed of 50 per cent judges of the Conseil d´État and 50 per cent judges originating from the Supreme Court of France, the so-called Cour de Cassation. Private citizens are not allowed to step up before this court, but only judges and some state authorities.
German Law can be divided into two parts: public law (öffentliches Recht) and private law (Privatrecht). The public law in Germany governs the relation between the public powers themselves, between public powers and the state and between public powers and individuals. In opposition to that, the private law governs matters between natural or legal entities, judicially equal people. The citizen stands in a different spot in between the laws. While in public law the citizen is always placed under the state, he or she is equal to another under the private law. Generally, constitutional, international, criminal, administrative, and procedural law belong to the public law and the commercial and copyright law belong to the private law.
There are two kinds of jurisdictions in Germany, which will be further elaborated on later in this paper: The ordinary jurisdiction and the special jurisdiction. The ordinary jurisdiction consists of civil and penal jurisdiction. The special jurisdiction governs public law disputes.
Generally, it can be said that while in Germany and France there is a well-established distinction between private and public law, the distinction in England was not traditionally made. Another additional aspect to consider is that European law is applied in all three countries. The law of the EU has supranational powers, meaning that it is superior to the law of member states.
4. Court Structure
4.1 United Kingdom
The court structure in the United Kingdom can be classified in three different ways (Keenan and Riches, 2009). Firstly, a distinction can be made between civil and criminal courts. While there are some courts which are only focused on civil or on criminal proceedings, the majority of courts hears both cases. Secondly, there are first instance and appeal courts.
If a case is reported to a court for the first time, a first instance court will hear it. Since mistakes cannot be eliminated there is the option to bring the case to an appeal court, which may change jurisdiction over the case. As in the previous case, there are also courts that hear both, first instance cases as well as appeals. Lastly, judgment can be classified according to judgments within courts and judgment within tribunals.
Figure 1: Court Structure, England In the following the focus will be on the distinction between criminal courts and civil courts, which is also depicted in Figure 1 .
Figure 1: Court System, EnglandMagistrates’ Courts: 95 percent of criminal cases are decided in magistrates’ courts. At minimum two (usually three) lay magistrates are required to try a criminal case. Additionally there is one District Judge . The jurisdiction of the court includes minor offences (e.g. sentencing power up to 12 months for one defence and up 65 weeks for more than one offences). Additionally, the court has the ability of ‘sending for trial and committal proceedings’ (Keenan and Riches, 2009). Also, the court included cases with youth and criminal administration.
Crown Court: consists of a judge, usually assisted by a jury of 12. Jurisdiction is the trial of serious offences as well as receiving the committals and appeals from the magistrates’ court.
High Court: split into three divisions, namely Family, Chancery and Queen’s Bench. Jurisdiction includes appeals from Magistrates’ Court and Crown Court and judicial review. In addition to this, there is the newly established Administraitve Courts, which are responaible for judicial review. This court was previously grouped under the Queen´s Bench. It does not belong to the criminal procedures, but has to be treated as a different procedure.
Court of Appeal (Criminal Division): consists of 37 Lord/Lady Justices of Appeal and possibly a High Court Judge. Jurisdiction includes appeals from trials on indictment in Crown Court, Reference by Criminal Cases Review Commission and by the Attorney-General.
Houses of Lords: minimum of three and maximum of five judges. This court is the final appeal court in civil as well as criminal cases.
County Courts: circuit judges rule actions to recover land, company winding-ups, family matters, consumer credit, bankruptcies. Contract and tort, equity, probate proceedings and patents
Magistrates’ Court: has also a minor civil function in cases connected to family proceedings, licensing and recovery of civil debts
High Court: the Queen’s Bench Division handles contract and tort and judicial review in an ordinary court and has additional Commercial, Admiralty and technology Courts. The Divisional Court deals with civil appeals. The second division (Chancery) is consulted in equity matters and includes a Court of Protection, Companies Court and Patents Court. The Family Division tries cases involving children and matrimonial matters.
Court of Appeal and House of Lords: are consulted in appeal situations, as has been explained in case of criminal jurisdiction before.
Figure 2: Court Structure, France4.2 France
The French court system is divided into Administrative Courts (juridictions administratives), dealing with cases against the government, and Judiciary Courts (juridictions judiciaries), handling civil and criminal cases. Generally, the French court system also makes a division in inferior courts, appellate courts and the Supreme Court, as a court of last instance.
The Common Pleas Court (tribunal d’instance) is the original court dealing with civil cases. The tribunal de grande instances is the superior court and tries general jurisdiction in civil cases. There are also courts, which are specialized in certain functions, such as the conseils de prud’hommes (labor law court) and the tribunal de commerce (commercial courts).
In case of appeal the Court of Appeal is the next instance (court s’appel), which consists of different chambers, depending on the case and whether it is of civil or criminal nature. The last instance is the French Supreme Court of Judicature (Cour de Cassation), which is the court of final appeal in both civil as well as criminal cases.
In case of a criminal procedure the police court (tribunal de police) has jurisdiction over criminal offences committed by adults. However, it is limited to fines, which do not include prison. The Criminal Court (Tribunal Correctionnel) deals with cases délits and tries cases connected to prison fines and monetary fines that exceed 3750 Euro. The Court of Sessions (Court d’assises) handles offences with ten years of prison minimum. Therefore, it tries very severe crimes in form of a jury trial. In case of appeal the next instance is the Court of Appeal, as described in the civil proceedings. The last instance is the Court de Cassation.
As said before, there is another stream of jurisdiction, namely the Administrative Courts. As Auby and Cluzel-Metayer (2007) point out ‘delimitation (of administrative courts) is extremely difficult’. The reasons are that administrative courts do not deal with all administrative cases. Secondly, there is an increased complexity, because jurisdiction is built on several criteria. To combat these problems a court was introduced which function is ‘to arbitrate where there is a disagreement as to whether a case falls under the jurisdiction of administrative courts or under the jurisdiction of ordinary courts’ (Auby and Cluzel-Metayer, 2007).This court is called Jurisdictional Court (Tribunal des Conflicts). Once a case is processed in the administrative courts, it can go through three instances in appeal and end up in the Council of State (Conceil d’Etat), the court of last resort, which can be compared to the Supreme Court for administrative law.
Figure 3: Court Structure, Germany4.3 Germany
In contrast to France and England, this part will be divided by jurisdiction and not by procedure. The reason for this is that the different jurisdictions in Germany have very different procedures and it is hard to give a clear picture of Germany´s court system by simply dividing it by procedure. For the reason that the system is very complex and thus complicated, we believe that it gives the best overview to explain the various jurisdictions in Germany. The jurisdictions in Germany are unified –at least to a certain degree- by the Verwaltungsgerichtsordnung (VwGO), which can be translated into Rules of the Administrative Courts. To point out the applied procedures, we will name the applied procedure of each jurisdiction in the various descriptions.
In the Federal Republic Germany, courts belong either to the federation (Bund) or one of the sixteen states (Länder) of Germany. On the federal level there is the Supreme Court governing each of the six jurisdictions: ordentliche Gerichtsbarkeit, Verwaltungsgerichtsbarkeit, Arbeitsgerichtsbarkeit, Sozialgerichtsbarkeit, Finanzgerichtsbarkeit and Verfassungsgerichtsbarkeit which can be translated into ordinary jurisdiction, administrative, labour, social, tax and constitutional jurisdiction. We will elaborate on each of the five further below. Also belonging to the Federation´s jurisdiction are the Federal Constitutional Court as well as several further courts named in the Constitution of Germany, as for instance military tribunals. All other courts belong to the states.
The ordinary jurisdiction is the largest jurisdiction in Germany and consists of two parts: The Zivilgerichtsbarkeit (civil jurisdiction, including all civil and commercial law) and the Strafgerichtbarkeit (criminal jurisdiction). These two were constructed under one main name as they were – as opposed to the special courts- historically the only courts in which qualified judges sat.
The hierarchy of the ordinary courts is displayed below:
Criminal offences and small civil suits are governed in the 675 Local Courts, in German Amtsgerichte, in Germany. Most local courts only have one judge, accompanied by a lay judge in criminal cases. Some routine legal functions, as for instance probate, are also carried out by the Local Courts.
The Regional Courts, in German Landgerichte, are divided into two parts: The Strafkammern (criminal chambers) and the Zivilkammern (civil chambers). In these two matters (criminal and civil) it holds original jurisdiction. The Regional Courts are the final instance of appeals for matters coming from the local level. There are 116 Regional Courts.
Higher Regional Courts:
The primary task of the 24 Higher Regional Courts, in German Oberlandesgerichte, is to review appeals coming from lower courts.