Academic journal article
By Germain, Claire M.
Duke Journal of Comparative & International Law , Vol. 13, No. 3
In France, Justice Jackson's question about where to look for the meaning of a statute would be phrased in broader terms and would not be limited to the question of whether to look only at the words of a statute or also at the legislative intent. French law starts from the premise that statutes and codes are the foundations of the legal system in the same way that cases are the foundation of the common-law system. Because of the primacy of written law in France, statutory interpretation lies at the heart of French law. Statutory interpretation is very flexible, and there are no strict canons of interpretation. (1) The drafters of the Civil Code, Napoleon (2) in particular, intended only to set general principles, (3) leaving it up to judges to apply the principles to the circumstances of cases. (4) This is why the Civil Code of 1804 can still resolve many of today's issues, such as those generated by automobile traffic accidents, that could not be anticipated at the time of writing. (5) It is commonly under8tood that legislators cannot anticipate all situations and all difficulties that might arise from the application of legal texts. (6) The meaning of statutes is not always clear. Moreover, the adaptation of texts to concrete situations may cause difficulties. Interpretation is needed on the meaning and scope of the text. (7)
II. JUDICIAL INTERPRETATION AND THE CIVIL CODE
In France, a judge has both the power and the obligation to interpret statutes on the basis of Article 4 of the Civil Code, which states that a judge who refuses to come to a judgment, under pretext of the silence, obscurity, or insufficiency of the law, may be prosecuted on the basis of a denial of justice. (8) The judge's power, however, is limited to decisions concerning specific instances. Article 5 of the Civil Code stipulates that judges are prohibited from pronouncing, by way of a general, law-making provision, on matters submitted to them (called an arret de reglement). (9) This peculiarity, an essential difference from the common law, is historical. It results from the revolutionaries' hostility toward judges in the Parliaments, who, before the French Revolution, issued general rulings and fought all attempts at reform by the King. (10)
A corollary principle is that the judge must give reasons for (motiver) a decision on the basis of a text. (11) Thus, almost all cases are based on statutes. When the statute is clear, it must be applied, but, many times, there is also a need for interpretation.
French codes contain no provisions regarding methods of interpretation. (12) It has therefore been up to judges to find ways to interpret statutes, and to scholarly commentators to expound on the various methods. The major methods of interpretation under different classifications are exegetic and teleological, according to French seholarship. (13) The exegetic method makes use of legislative history. The teleological method, which looks at the social objective of the statute, has several different variations. The use of legislative history--travaux preparatoires--has consistently been considered one of the major ways to interpret a statute, but its use has varied depending on the age of the law, as described below. It coexists with other methods of interpretation.
In the system originally adopted in the Constitution of 1791, judges referred questions of interpretation to the legislature, which resolved differences among courts. This process, called refere legislatif, ceased in 1837 (14) because of the danger of decisions inspired by political considerations and the lack of necessary independence to resolve already-existing disputes. (15) Parliament can interpret its own laws by issuing a posterior law, called an interpretive law. Courts are very reluctant to apply such laws retroactively. (16) In practice, these laws are rare and do not playa significant role. (17)
As a method of statutory interpretation, the exegetical school triumphed in the nineteenth century. …