French judicial style

The language used by the French judiciary – especially the Cour de Cassation but to some extent also the lower courts – reflects the particular style of the French legal thought.

405 However, as suggested by Goodman, the English courts today pay more attention to the state-ment of reasons particularly as regards the clarity of language, partly due to the incorporation of the Convention into national law through the Human Rights Act of 1998 (see Goodman 2005, p. 10). There are various means for judges to clarify their opinions, e.g. by means of introducing titles, which have become common in lengthy judgments, or numbered principles (Ibid. p. 73 and 74).

This is visible in the content, structure and phraseology of decisions⁴⁰⁶. The judgments tend to follow a certain form⁴⁰⁷, with very brief and formal reasoning. When compared e.g. with German judgments, the French ones are strikingly shorter⁴⁰⁸. According to Wetter, the early French judgments (until 1960) have shared common elements with those in Germany and Sweden, particularly in so far as the format and compactness of expression are concerned⁴⁰⁹. One may note, however, that towards present times, the styles of writing judgments in the legal systems covered by the present study have departed from one another as it has become more common to provide detailed reasons for the judgments. Today, it is an established practice in the French judiciary to provide reasons for the judgment, although it has not always been the case⁴¹⁰ and the reasons may still be rather compact. The late introduction of compulsory reasoning may explain the fact that even today, French judgments are more compact than those in Germany, and when looking into the selection of judgments analysed for the purposes of this study, one may note that in the Cour de Cassation, judgments are still very dense and compact. The reasons provided by the court mainly refer to legislation, and it is hard to analyse the way in which the principles of law and interpretation have in practice been applied, and it is not customary to have references to the case law of the European Court of Human Rights⁴¹¹. Even in the most elaborated cases, the references to the European Convention on Human Rights are rather definitions of the conduct that constitutes a violation of the Convention provisions. The judgments of the French Cour de Cassation have some similarities with those of the European Court of Justice, but differ considerably from the judgments of the European Court of Human Rights, which are very extensive. The structure of judgments is also different, with the

excep-406 For the purposes of the present study, a selection of judgments of Cour de Cassation (Première chambre civile), have been looked into, including Arrêt n° 688 du 11 juin 2009, Arrêt n° 689 du 11 juin 2009, Arrêt n° 1308 du 10 décembre 2009, Arrêt n° 1309 du 10 décembre 2009, Arrêt n° 198 du 25 février 2010, Arrêt n° 343 du 31 mars 2010, and Arrêt n° 301 du 17 mars 2011.

407 The form and content of both civil and administrative law judgments are regulated by law. Any judgment is composed of five elements: mentions (public or not, parties, a report has been read, composition of the court), visas (summary of briefs and documents presented by the parties), motifs (brief statement of facts and justifying arguments), dispositif (decision proper, the ruling on the issue), and formule exécutoire (order to execute the judgment). See Troper and Grzegorczyk 1997, p. 106 and 107, and Mattila 2011, p. 99.

408 David & Jauffret-Spinosi 2002, p. 113-114. See also Mattila 2010 (1), p. 720, Grewe 1998, p.

214, Troper & al. 1991 [1998], p. 172 and p. 197-200, as well as Troper and Grzegorczyk 1997, p. 107. According to Troper and Grzegorczyk, the style can be described as being magisterial.

409 Wetter 1960, p. 28.

410 David & Jauffret-Spinosi 2002, p. 113. The compulsory practice of reasoning judgments was established in France in 1790 (Ibid.). The obligation to provide reasons for the judgment is today based on the provisions of the Code de procedure civile and Code de procedure pénale although they do not provide for detailed instructions.

411 See e.g. Cour de cassation, Première chambre civile, Arrêt n° 198 du 25 février 2010, which includes several references to the Convention, but those are very brief.

tion of the first few judgments of the European Court of Human Rights that appeared to follow the structure of French judgments. The considerably different technique of writing judgments have the potential of creating problems in the reception of the argumentation of the European Court of Human Rights, and might be one factor behind the high number of violations found in cases against France, although there are most likely other more profound systemic or cultural problems.

The German way of reasoning is closer to that of the European Court of Human Rights, although it is perhaps more dogmatic than the rather concrete and pragmatic way of reasoning of the European Court, whereas the French style of reasoning is far from concrete⁴¹². In Germany, the statements of reasons in judgments tend to be wide-ranging and loaded with citations. The judgments of French courts have, on the one hand, been criticised for not stating reasons clearly enough, and in the decisions of the Cour de Cassation there is no particular section devoted to the facts of the case or to the history of litigation. This also makes it difficult to assess in which manner the judiciary develops the law. Insofar as the Cour de Cassation is concerned, this brief and compact style is due to that the court does not review the decisions of lower courts as to facts (merits) but can merely quash the decision of a lower court due to incorrect application of statutes, and refer it back for a new hearing.⁴¹³ As reminded by Troper & al., however, the French courts have now power to review legislation and to invalidate unconstitutional acts⁴¹⁴, which might in future contribute to an increasing number of more elaborate judgments.

There has already been a tendency to move towards more elaborate and substantiated decisions, especially by judicial courts, partly because of influence of European courts, but partly because of the influence of the Conseil Constitutionnel.⁴¹⁵ On the other hand, Mattila points out that the texts of the French judgments do not provide an entirely cor-rect picture of what the judges do. In reality, they go through sources of law profoundly.

This is visible e.g. in commentaries (notes) on judgments that are published in legal periodicals. The judgments and the commentaries constitute a functional entity. The deliberations would also be visible in the memorandum of the judge and the opinion of the advocate general, which in respect of the highest jurisdiction are published in the court’s database. These instruments supplementing the judgment can be very detailed and refer to a wider range of materials than legislation alone.⁴¹⁶ Thus, although on the basis of the judgments alone one would draw a conclusion that there is very little influence

412 This is the view of Grewe, among others. See Grewe 1998, p. 214 and 215.

413 Zweigert & Kötz 1998, p. 120-130. Troper & al. 1991 (1998), p. 171 and 172.

414 Troper & al. 1991 (1998), p. 172.

415 See Troper and Grzegorczyk 1997, p. 108.

416 Mattila 2011, p. 100, and Mattila 2010 (1), p. 720.

from the French judicial style and discourse⁴¹⁷ on the discourse of the European Court of Human Rights, there may be significantly more influence from the French legal language on the language of the Court – particularly as regards the French language versions of judgments. However, both the English and French language judgments of the European Court of Human Rights follow an identical structure, and it is strikingly different from that of the French Cour de Cassation judgments.