Current Legal Problems Volume 48 Issue Part 2 1995 (Doi 10.1093 - CLP - 48.part - 2.63) Bell, J. - English Law and French Law - Not So Different

ENGLISH LAW AND
FRENCH LAW-NOT SO
DIFFERENT?
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John Bell
Sitting in my office, I look out on the clock tower of Leeds

Grammar School, where many years before, the great comparative
lawyer Harry Lawson was a pupil. In the year of my birth, Harry
Lawson published a series of lectures, entitled, A Common Lawyer
Looks at the Civil Law1, in which he tried to draw out some of the
differences between common law and civil law systems. My
purpose in this lecture is to highlight a few perspectives of my own
on a similar theme which are more narrowly focused on French
law. I do so under the caution issued by that contemporary master
of comparative law, Basil Markesinis, who has rightly reminded us
that the best comparisons focus on concrete issues, rather than on
grand distinctions between legal systems or families of systems,
taken as a whole.f I hope that what follows does not grossly violate
that injunction of experience and common sense. While Markesinis
is right to insist that comparison should be grounded in a close
study of specific areas of law, there are some features of a legal
tradition which provide a context for the approach of lawyers in a
particular system to specific problems. I may thus make general
remarks about the two systems, but these arise out of specific
instances. The generalisation of the conclusions based on that
evidence is made advisedly, but with caution, since it is difficult to
make useful general statements about differences between the legal
systems.
It is conventional to suggest that there are marked differences in
European -legal cultures. The focus on 'legal culture' is used to
1 University of Michigan Law School, Ann Arbor, 1953.

2 For example, 'An Expanding Tort Law' (1987) 103 LQR at 396. For an
excellent illustration of what can be done, see G. Viney and B. Markesinis, 1.A
reparation du dommage corporel, (Paris 1985).
64 John Bell
suggest that the differences go beyond mere differences in rules,
legal concepts, or legal institutions and professions. A culture is a
configuration of values, concepts, practices and institutions through
which individuals interpret and apply legal norms.? It is a way of
living with law, of relating to it, which conditions the lawyer. Now,
in an important sense, there is a common western European legal
culture. We have common liberal democratic political values which
are operated in capitalist, secular, pluralistic societies under the rule

of law. Our common values are symbolised by adherence to
common statements such as the European Convention on Human
Rights and the Treaties of the European Union." Through divergent
influences of Roman law, we share many legal concepts and can
dialogue reasonably easily about interpreting legal rules and
principles across a variety of legal cultures.' All the same, our legal
procedures, institutions, professions and education are often
different. Indeed, even within individual legal systems there may be
several cultures arising from different procedures and institutions
such as courts, related professions and education. The French are a
good example, with marked differences between civil and adminis-
trative law rules, procedures, courts, judges, and their legal
education which combine together to create distinctive legal
cultures. French administrative law differs from private law in that
it has no code", it has its own rules and concepts, a distinctive set of
'public interest' values, as well as distinctive courts and judges. A
similar analysis could be made of the relationship between criminal
law and the rest of many legal systems. In addition, it must also be
borne in mind that law is only one feature of a country's culture
and that the law is likely to be influenced by other aspects of the
culture of the country it serves. Legal culture is thus a complex idea
which can serve to identify both features which transcend purely
legal or national boundaries and those which reinforce divisions .
.I On the concept of legal culture see H. W. Ehrmann, Comparative Legal
Cultures (Englewood Cliffs NJ, 1976), pp. 5-10; C. Varga, Legal Cultures
(Aldershot 1992), pp. xvii-xx,
" See K. Modeer, 'Europeisk rattskultur och rattshistoria' in idem, Europeiska
Vykort (Lund 1994), 9.
5 For a good example, see D. N. MacCormick amd R. S. Summers, Interpreting
Statutes (Aldershot 1992).
6 Dalloz do publish a selection of texts called the 'Code administratif' and this
does contain a number of discrete administrative 'codes'. but neither of these
represent an integrated set of principles and rules which is characteristic of the Civil
code.
English Law and French Law 65
There is no denying obvious differences in legal culture between
England and France: the structures of the courts, legal procedure
(most markedly in criminal proceedings), the different legal
professions-for example the roles of the French huissier and the
notaire which have no real equivalentin English law. To undertake
a legal transaction such as buying a house, making a will, or
complaining that your landlord has failed to repair your flat, you

encounter differentlegal actors in each system. I would not wish to
belittlethe importanceof theseinstitutional features of law either in
terms of their disorienting effect on a lawyer or citizen from
another legalsystem or for their impact on the way the law actually
works. A written procedure relying on formalised evidence and
burdens of proof can lead to different outcomes from a system
which relies on the cut and thrust of forensic argument and oral
cross-examination of witnesses," Most fundamentally, those who
operate such different systems of procedure and (often) those who
are subjected to them take such institutions and procedures as
constitutive elements of justice. 8 A good example comes in the
difference between French and English legal systems over the
question whether the accusedcriminalhistory should be revealed to
the judge or jury before a decision is reached on guilt. In France,
this is always available and typically the object of specific comment
in the examination of the accused (which is the first substantive
part of the trial). In England, it can rarely be used (e.g. only where
the accused seeks to discredit certain witnesses). We have here a
divergence of view about what is required in doing justice to the
accused: to come to the truth based on full information, or to focus
on a specific crime and whether the evidence in relation to it alone
is sufficiently convincing. What is actually done in the name of
justice may well shape perceptions of what is considered just in a
particular system.
Important though the institutional and procedural differences
are, I want to focus attention on other kinds of difference between
legal systems whichare considered more fundamental. Comparative
7 j. Beardsley, 'Proof of Fact in French Civil Procedure' (1986) 34 Am. jo. Compo
Law 459.
8 See j. Thibaut and L. Walker, Procedural Justice: A Psychological Analysis
(Hillsdale, New jersey, 1975) which compares reactions of students from different
legal systems to the fairness of different legal procedures: more generally J. Bell, in
K. R. Scherer (ed.),Justice.lnterdisciplinary Perspectives (Cambridge 1992), p. 128.
66 John Bell
law literature pays particular attention to major differences
between legal systems not just at the level of legal procedure,
professions and institutions through which lawyers work, but at the
level of how lawyers think, what it is to be a lawyer in a particular
system. This paper is a reflection on the nature of such suggested
differences between legal systems. It is not exhaustive. Rather it
attempts to highlight major features of the topic by drawing on a
comparison between two legal systems. Hopefully, this will be a

stimulus to an agenda of study.
I. Differences between legal systems

Detecting differences between legal systems taken as a whole is very
dangerous. As Lawson put it, 'like nature, law knows no sharp
division between species'." Other grand masters of comparative law
make similar points, suggesting that generalisations about private
law may not be applicable, for instance, to constitutional law, 10 or
that some branches of law seem to have almost an autonomous
existence within a legal system.!' No legal system is a fully
integrated system; rather each system provides a number of
different possible nodal points for comparison from which different
conclusions may be drawn. Should the bundle of indicators be
sufficiently large, then significant differences can be identified,
whatever significant points of similarity also exist. To take an
analogy, both Camembert and Wensleydale are white cheeses made
of cow's milk, but they remain significantly different gastronomic
experiences!
A number of grounds of distinction between legal systems have
been drawn in the literature, but none is perhaps wholly satis-
factory.
(a) Concepts
In his wide-ranging lectures of 1953, Lawson argues that there is a
great similarity between English law and French law: 'the more one
9 Supra note 1, p. 52.

10 K. Zweigert & H. Katz, An Introduction to Comparative Law (2nd edn,
Oxford 1987), p. 66.
11 R. David, International Encyclopedia of Comparative Law (Tiibingen 1973),
vol. 2, ch. 5, para. 81.
studies French law, the more one realises that in many ways it
greatly resembles the Common law, and serves as a bridge between
it and the more remote Civil Law systems,12. All the same, he does
see some general features of the civil law present in French law
which mark it out from the common law:
the leading differences between [the Civil Law] and the Common Law
world are not differences of method or in the ways of handling source

materials, but the concepts themselves; and again that, although the
concepts often differ in their general character, the most significant
differencelies just in the simple fact that the two sets of concepts are not the
same.'t3
The existence of distinct legal concepts constitutes a significant part
of the analysis of Zweigert and Katz with their idea; of 'legal
styles'!", Geoffrey Samuel has more recently suggested that this
issue needs approaching in a more sophisticated way, and that we
need to study the way concepts bring together the three dimensions
of persons, things and acrions.P Like Lawson, he suggests that
differences in the mentality of lawyers in different legal systems is
shown by their different frameworks for legal thought.
(b) Ideology
Rene David lays greatest store by ideology as the determinant of
difference between legal systems. We may use similar concepts, but
if they operate within a different ideological framework, their
meaning will be different.l" But within a common liberal political
ideology, David quickly emphasises the role of legal technique as
the principal determinant. All the same, I would argue that the
place of ideology is not to be neglected even in the analysis of
politically similar societies.
As has been pointed out by Gallie and others 17, although two
people may share the same concept, they may have different
conceptions which lead to different outcomes or positions. Atiyah
and Summers have used this insight to great effect in their
12 Supra note 1, p. 56. 13 Ibid, p. 209. 14 See infra.

15 The Foundations of Legal Reasoning (Antwerp 1994), pp. 248-50.
16 See R. David and 1. E. C. Brierley, Major Legal Systems of the World Today
(3rd edn, London 1985), pp. 20-1.
17 R. Gallie, 'Essentially Contested Concepts', (1965) 56 Proceedings of the
Aristotelian Society 167, 172-3.
68 John Bell
comparison of English and American law-in brief, they argue that
two parts of the same common law family share radically different
conceptions of law, English law having a formalist conception,
focused on the correct identification and application of established
rules, the United State of America having a more substantive
approach, focused on achieving substantially just outcomes.!" By
analogy, one could ask how far a common conception of law is
shared between two members of the western European liberal

political tradition.
(c) Style
Zweigert and Katz argue that:
the critical thing about legal systems is their style, for the styles of
individual legal systems and groups of legal systems are each quite
distinctive. The comparatist must strive to grasp these legal styles, and to
use distinctive stylistic traits as a basis for putting legal systems into
groups.!"
For them, the distinctive features which are critical to identifying a
style are '(1) its historical background and development, (2) its
predominant and characteristic mode of thought in legal matters,
(3) especially distinctive institutions, (4) the kind of legal sources it
acknowledges and the way it handles them, and (5) its ideology'r'"
The agenda is thus widened beyond ideology to embrace history,
legal reasoning, and legal sources. Such an agenda has been
embraced with vigour by Basil Markesinisf ' as providing a basis for
identifying how developments of law in Europe will go forward.
There is much to be said for such a varied agenda which is not
essentialist in its approach, but tries to draw out family resemb-
lances between systems.
(d) Mentalite
A difficulty, however, with the concept of 'style' is that, in English,
it carries the connotation of something rather superficial, transient,
or at least inessential. Style touches not at the real substance of
what is done, but at the outward appearance or presentation. For
Geoffrey Samuel, the concept of style seems unhelpful in as much as
18 See P. S. Atiyah and R. S. Summers, Form and Substance in Anglo-American

Law (Oxford 1989), esp. pp. 411-15. 19 Op. cit. p. 68.
20 Ibid, p. 69. 21 'A Matter of Style' (1994) 110 LQR 607.
English Lawand French Law 69
it tends to mask the transpositions between legal families, concepts
and techniques 22, whereas what matters is how they fit together. By
contrast, he and Markesinise' talk of a difference in 'mentality'
between lawyers in the different systems. This suggests something
more profound, since a mentalite offers a way of thinking, a way of
looking at problems which brings together the different features
listed by Zweigert and Katz under the notion of 'style' into a world

View.
(e) Tradition
My own approach is closer to that of Merryman and has been to
suggest that law is not just a system of norms and values, but also a
set of practices and approaches of a specific legal community, and
that these features build together into a tradition:
A tradition may be defined as a complex of rules, concepts, institutions and
practices which characterise the way the law works in a particular area.
These features build together into a process. In shortt a tradition is a way of
doing things, which is handed down and shapes the way in which the law
operates.i"
The practice of law is an activity of engaging in a process of
interaction with a tradition which provides a framework for
handling social problems. The law is not simply a set of historically
created norms of statute or case-law which have to be interpreted, it
is also the practice of a historically, socially and politically
determined legal community which makes accessible those norms
and determines the criteria of correct interpretation. It is the
practice of that community which accords authority to the sources
22 Op. cit., p. 66.

23 The Gradual Convergence (Oxford 1994), p. 2; G. Samuel, supra note 15,
p. 28; also B. Nicholas in D. Harris and D. Tallon, Contract Law Today (Oxford
1989), p. 385 talks of a difference in 'fundamental mental attitudes' between English
and French lawyers.
24 1. Bell, 'Comparative Law and Legal Theory' in W. Krawietz, N. MacCormick
and G. H. von Wright, Prescriptive Formality and NormativeRationality in Modern
LegalSystems (Berlin 1994) 19 at p. 25.1. H. Merryman defines as legal tradition as
'a set of deeply rooted, historically conditioned attitudes about the nature of law,
about the role of law in the society and the polity, about the proper organisation and
operation of a legal system, and about the way law is or should be made, applied,
studied, perfected, and taught. The legal tradition relates the legal system to the
culture of which it is a partial expression.' (Legal Traditions (Stanford 1969), p. 2).
70 John Bell
of law (since you will not find these written in a text in most legal
systems), and which determines how they are to be read. To give an
illustration, as we shall see, writing a French court judgment is an
art form which requires a special skill to be able to interpret
correctly. Making sense of a case or statute requires an under-
standing of the conventions of the genre, as they operate within the
practice of a particular legal community. It is thus not just that
there is a past or even a present context which contingently

determined how lawyers operate. Rather it provides the means by
which lawyers can think as lawyers of that system: it provides the
materials for legal interpretation and guides the interpretation.
This is not to deny the importance of style, but rather to suggest
that there is'a better way of conceiving of how the different elements,
such as those listed by Zweigert and Kotz, are constitutive features
of what it is to be a lawyer. The mentalite arises out of a legal
tradition which is often related to other features (political, cultural
and institutional) of the society in question. The practice of the
tradition in the contemporary world is what defines a legal culture.
In other words, law is conceived of not just as a set of rules or
concepts, but rather a tradition of using these in particular ways as
part of a social practice. Norms, concepts, values and practices are
all handed down within a legal community working in particular
legal institutions, such as courts, and these parts of the legal
tradition all help to shape a particular legal culture. A legal culture
involves a specific way in which values, practices, and concepts are
integrated into the operation of legal institutions and the inter-
pretation of legal texts. My approach is to look at differences not in
terms of discrete individual features, but to focus on whether there
is a general difference in legal tradition or culture which is exhibited
in particular ways. It is that aspect that Zweigert and Kotz are
concerned to discern through the general concept of 'style'.
My focus for this article is to concentrate on certain potentially
endemic features of the legal traditions of England and France
which have been highlighted by legal scholars as significant points
of difference between the systems. Legal concepts and conceptual-
ism, legal reasoning and argumentation, and the role of law in
society are the principal- areas which authors such as Lawson,
David, and Zweigert and Katz have highlighted as areas of
difference. Each is expressive of a different way of viewing the
world arising out of specific legal traditions, rather than just
showing a difference on a specific aspect. Legal concepts and legal

reasoning are central features of a legal culture viewed from within,
while the place of law in society is how it is viewed from without. I
intend to examine the importance of each feature and to suggest
ways in which they contribute or not to the differences between the
systems.

II. Concepts and conceptualism
Lawson was obviously right to point to the disorienting effect for a
common lawyer studying the civil law and vice-versa of the lack of
commonality between the conceptual maps of the different systems.
It is not just that the individual concepts are different, but that the
whole conceptual landscape can be significantly different so that
the problem you are studying does not arise conceptually in the
same way. Take for example the common law of the two systems
concerning an accident on the Eurotunnel line (as opposed to
statutory and other rules which actually apply). Suppose I am a
passenger on the Eurostar from London to Paris, and I am killed as
a result of an accident. If the contract were governed under the
ordinary English law, my dependants could bring an action in tort
for negligence under the Fatal Accidents Act for loss of dependency.
In France, there would be a contractual stipulation in favour of my
nearest and dearest when I bought the Eurostar ticket, and they can
sue for breach of the contractual obligation de resultat to get me
safe and sound to my destination, their loss being essentially loss of
my financial support and their grief25. The relationship between my
family and the railway company would be categorised in terms of
different concepts. Such a phenomenon of different classification is
important to the extent that it gives rise to different outcomes,
which it potentially does in the case where the passenger's
dependants cannot prove fault on the part of the railway company.
But one might argue as Zweigert and Katz for a presumption of
similarity at least in terms of the general range of outcomes
achieved by each systern.i" Any significant difference would have to
come at a deeper level, where differences in outcome represent
particular value perspectives.
26 Op. cit., p. 45.

25 See B. Nicholas, The French Law of Contract (2nd edn, Oxford 1992), p. 190.
72 John Bell
To illustrate such a value perspective, one might take the notion
of the 'state'. French political scientists and lawyers see the state as
the embodiment of the general will. It is fundamentally beneficent
and is accorded special powers and special status as a result. The
distinction between public law (the law about the state) and private
law (the law about individuals) seems to flow naturally from this.
The development of the legal and political conception of the state is
one to which lawyers have contributed significantly.V

By contrast, it is argued that the English do not have a legal
concept of the State, and leading lawyers have said SO.28 But we get
by with substitutes, such as 'the Crown' (covering government
ministries) and 'public body' (covering a range of organisations
from quangos to public enterprises). This difference in terminology
traditionally reflects an ideological difference-different concep-
tions of the state and of civil society. 29
Yet modern English law does have difficulties arising from the
absence of a notion of the state. To take just two. First, there is the
scope of judicial review under Order 53. This has been extended to
private bodies exercising power over private individuals without
any statutory authority, because they. are performing tasks akin to
those of government in regulating a sphere of conduct.'? Without a
conception of what the state should do and who belongs to the
state, English lawyers grope around for a coherent framework
within which to structure the supervision which they wish to
undertake. Thus sporting organisations, state-owned enterprises,
and even religious leaders have all been made respondents to
applications for judicial review (though typically without successj.I!
27 H. S. Jones, The French State in Question (Cambridge 1993), esp. ch. 2.

28 Lord Templeman, Ross v Lord Advocate [1986] 3 All ER 79 at 92; C. Graham
and T. Prosser, Privatizing Public Enterprises (Oxford 1991), p. 6: 'it has proved
impossible to identify coherently such a legal concept [in Britain]'. Though this is not
to deny that we do have highly sophisticated political theories about the state.
29 See Jones, supra note 27, p. 208; K. H. F. Dyson, The State Tradition in
Western Europe (Oxford 1980).
30 See R v Panel on Take-overs and Mergers, ex p Guiness pIc [1989] 1 All ER
509 at 538 per Woolf LJ; R u Panel on Take-overs and Mergers, ex p Datafin pIc
[1987] QB 815.
31 See R u Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1993] 2
All ER 853; R o National Coal Board, ex p. NUM [1986] ICR 791; R v Imam of
Bury Park [ame Masjid Luton, ex parte Sulaiman Ali [1994] COD 142 (Court of
Appeal); Ex Parte Wachsman [1991] COD 309.
This confusion about what is plausibly a public law matter stems
from the lack of a coherent concept of what is a state activity which
could underpin a delimitation of the use of public law procedures
and remedies.
Secondly, there is the discussion of privatisation. In 1986, when I
was observing the administrative sections of the Conseil d'Etat, the
new Chirac government brought forward proposals to privatise a
state-run television station, TFI. I recall the members of the Conseil

quizzing the government representatives on their precise intentions
by asking 'Is this still going to be a public service when it is
privatised?' For the French, it makes sense to say that an activity is
a public service, an activity of the state which is subject to a special
legal regime, even if it is operated by private companies. Our
conceptions of privatisation often fail to be clear on this point. 32 In
England, there is either public or private ownership. The idea of the
state having responsibility for defining the public service, whilst
leaving the private sector to deliver it is only gradually coming into
focus through the present government's 'contracting out' and
'market testing' policies. We have lacked an abstract idea of 'a
public service' as distinct from the concrete mechanisms of its
operation. Yet, through measures such as the Deregulation and
Contracting Out Act 1994, English law is adapting to a changing
political environment which will bring it nearer the French
position.
The European Community cases, notably Marshall and Foster"
show ways in which convergence is occurring through the
operation of a common system. As is well known, Community law
recognises vertical direct effect of directives, in the sense that an
individual may be able to invoke its provisions against an organ of
the state, even where the directive has not been implemented into
national law by the due date. Cases such as Marshall and Foster
require English courts to classify public bodies such as health
authorities and nationalised industries as organs of the state or not.
All the criteria offered by the European Court of Justice in Foster
32 See my comment in French Constitutional Law (Oxford 1992), p. 181.

33 Marshall v South Hants AHA, Case 152/84 [1986] ECR 732; Foster v British
Gaspic, Case 188/89, [1990] 3 All ER 897; see further J. Bell, 'The English Lawyer
in the Europe of 1993', (1992) 34 University of Leeds Review 181 at pp. 183-4.
74 John Bell
are drawn from the tradition of French law: unilateral authority,
provision of a public service for which it has special powers".
Such cases illustrate that English 'law can be moulded to make use
of different concepts. Concepts are not as untransplantable as are,
perhaps, legal institutions such as the juge d'instruction. 35 The
change that is occurring in public law to develop a more coherent
conception of the state is a change in ideology which is producing
greater clarity (and harmony between the systems) in this area. At

root, therefore, the lack of a concept of the state, does not so much
represent a fundamental difference in values (at least nowadays),
but a difference which arises out of a history of the common law
which simply did not develop this concept in the first place, and got
along without it. But that tradition is capable of being adapted to
new conditions. The English common law is here significantly
dependent on its external environment both in terms of the political
ideology of national society and in terms of the wider European
legal environment. Unlike an extreme version of autopoesis/" legal
concepts are only relatively self-perpetuating, and in significant
ways adapt to their new environment.
By contrast, there are concepts which reflect ideological values
not replicated in the other system. One such value is 'laicite'
(secularism), which has deep roots in the French Revolutiorr'", and
has led to a rigid separation of Church and state after the ending of
the Concordat in 1905. Today, that principle leads to the
discussion of the banning of Muslim headscarves in state schools
and of state support to private (mainly religious) schools. Wearing
signs of religious affiliation in an ostentatious manner is seen to
threaten the neutrality of the secular state school. Pupils have a
34 [1990] 3 All ER at 922 para. 20: 'a body, whatever its legal form, which has
been made responsible, pursuant to a measure adopted by the state, for providing a
public service under the control of the state and which has for that purpose special
powers beyond those which result from the normal rules applicable in relations
between individuals is included ... among bodies against which the provisions of a
directive capable of having direct effect may be relied on.'
35 See]. Spencer and M. Delmas-Marty, in B. Markesinis, The Gradual
Convergence, above note 24, ch 2.
J6 However, G. Teubner, Law an an Autopoetic System (Oxford 1993), p. 61
rightly points to the fact that law does respond to the evolution of the external
environment, but often in its own particular way: by adaptation in symbiosis, rather
than by direct incorporation of the external ideas.
37 See F. Luchaire & G. Conac, La constitution de fa republique francaise (2nd
edn, Paris 1987), p. 140.
constitutional right to freedom of belief and freedom to express
that belief in school. So the wearing of a headscarf is not
incompatible with the secular nature of the school 'but this freedom
cannot permit pupils to bear signs of religious affiliation which, by
their nature, by the circumstances in which they are worn,
individually or collectively, or by their ostentatious or campaigning
character constitute an act of pressure, provocation, proselytism or
propaganda', ruled the Conseil d'Etat in its advisory opinion of

1989 38 , confirmed by decisions (in identical wording) from its
judicial sectiorr'". The ideological significance of this idea of
secularism produces a more heated debate with views of both left
and right drawn into conflict with religious groups. The value of
secularism drew a million Catholics onto the streets in 1984, when
the Socialist government planned to make the teachers in religious
schools state employees; and again in 1994, the state funding of
religious schools provoked heated debates, which were not solved
by a judicious ruling from the Conseil constitutionnel.l"
The low key attitude in Britain comes from a fundamental
religious pluralism embedded in the education system, which
openly encourages religious events within school, and permits the
founding of religious state-aided schools. Neutrality in Britain
involves both recognising the (supposed) religion of the majority
and accommodating other significant religious beliefs in the area
within the activities of the school. The French see education as a
place for developing Frenchness (an essentially secular idea), for
which religion is a bolt-on extra. For the British, education,
particularly under the Education Reform Act 1988 and the
Education Act 1993, tries to build together the distinct British
communities: Christian, Sikh, Muslim, Hindu, etc, while retaining
and celebrating their distinctiveness'", As one French colleague put
it, the British state's approach is to consider that people belong to
38 See J. Bell, 'Religious observance in secular schools: A French solution' (1990)
2 Education and the Law 121.
39 CE 2 November 1992, Kherouaa and others, AJDA 1992,833; CE 14 March
1994, Miles Nesinur et Zehranur Yilmaz, Rfda 1994,630: in these cases, a total ban
on having headcovering in classes or In the refectory was held to be too wide. In CE10
March 1995, Aoukili, AJDA 1995,332 the suspension of two girls for refusing to
remove their headscarves during physical education lessons was upheld.
40 See J. Bell, French Constitutional Laso, pp 152-4; CC decision n° 93-329 DC
of 13 January 1994, Private Education Subsidies, AJDA 1994, 132.
41 N. Harris, Law and Education: Regulation, Consumerism and the Education
System (London 1993), pp. 206-8.
76 John Bell
communities as central to their identity, rather than that they share
in a common national identity. Letting Muslim girls wear a
headscarf or a Sikh a turban has raised some problems in Britain,
but these have not been long-lasting.V In an important way,
'laicite' has no equivalent in English law, and it has certainly not
generated significant legal debate. We have to recognise that, for all
their many similarities, French and English societies do have some
differences in values and this is reflected in their legal systems, and

shapes their legal culture or mentality. But again, it is not a
specifically legal concept which is at stake, but the way the law
relates to deeply held social and political values.
CONCEPTUALISM
Apart from carrying ideological meaning and disorienting the

foreign observer, concepts are perceived as having value in
themselves. This 'conceptualism' is seen as a feature of the civil law
tradition which marks it out from the common law. Thus Lawson
writes:
The civilian likes to be able to see clearly the shape and limits of the
abstract concepts and doctrines with which he has to work before he starts
to work with them ... The common lawyer is much more inclined to use a
concept of half-known outline as soon as he knows it is capable of
performing the actual limited task he wants it to perform, leaving for
further consideration what its other possibilities may be.43
There do, indeed, seem to be endless debates about the meaning of
concepts among continental lawyers, but I would argue that this is
not so much a product of a distinction between the civil law and the
common law, but between an academic tradition and a practitioner
tradition, or, at most, between different academic traditions.
Let me illustrate the point by the controversial French public law
notion of 'service public' (the public service). This concept has
served as the principal criterion for identifying a public law matter
42 See J. Bell, 'Religious observance in secular schools: A French solution' (1990)

2 Education and the Law 121; Mandla v Dowell Lee [1983] 2 AC 548 and the saga
leading to the Motor-Cycle Crash Helmets (Religious Exemption) Act 1976 (now
s. 16, Road Traffic Act 1988).
43 Supra note 1, p. 66; Zweigert and Kotz, op. cit., pp. 70-1.
(as opposed to a private law matter) for over a century.l" But its use
perhaps belies the distinction that Lawson was trying to make. In
French textbooks, you will find discussion of at least three major
criteria for identifying a public law matter: 'aurorite de la puissance
publique' (the exercise of public power), 'service public', and 'un
pouvoir exorbitant du droit commun' (the exercise of extraordinary
powers not available in private law). As treatises of administrative

law make clear, there has been a continual debate for over a century
both in doctrinal legal writing and in case-law on the meaning and
relative importance of each of these concepts in shaping the
distinctiveness of public law. 45 In broad terms the concept of
'public service' covers an activity undertaken by a public body to
meet a public interest need. But to apply this you end up with
questions, for example, whether national sporting organisations
approved by the minister are performing a public service, whether
holiday camps for children run by a local authority are a public
service or merely a revenue-earning service, whether staff in a
university restaurant are directly providing a public service,
whether a comic opera or the provision of street furniture are
public services, and so on 4 6 • Discussion of such questions seems to
demonstrate an intellectual fascination with concepts, above all in
academic legal writing, which tries to clarify and render coherent
the approach of the law, for example, in relation to the division of
functions between the administrative and private law courts. But
the case-law is more pragmatic, and, at the end of the day, even the
great treatise of de Laubadere concludes in favour of a pragmatic
solution: an activity is a public service if certain techniques are used
by the administration which mark the activity as intended to be an
exercise of public power. Case-law makes use of a bundle of
indicators which together suggest that an activity is more public
than private; but, in the end, the debate moves away from
essentialism ('what is the essence of a "public service" ?') to
44 TC 8 Feb. 1873, Blanco: L. N. Brown and J. Bell, French Administrative Law

(4th edn, Oxford 1993), p. 125.
45 See, for example, A. de Laubadere, J.-c. Venezia, and Y. Gaudemet, Traite de
droit administratif, vol. I, 11th edn, Paris 1990, pp. 35-45; A.-S. Meschariakoff,
Droit des services publics (Paris 1991), pp. 60-94.
46 See Brown and Bell, op. cir., pp 127-9; Meschariakoff, op.cit., pp. 58-9, 74,
77, and 85.
78 John Bell
existentialism ('what do we want to treat as a public service'r)."? As
Rodolfo Sacco has remarked,
the French model, compared with other romanist models, does not appear
to be the standard-bearer of the rationalist and systematic spirit.
Definitions are made in order to be contradicted by their applications;
important conceptual differences are not respected; different definitions
are not always coherent in relation to one another. The interest of the
French jurist turns towards the practical and axiological aspects of

problems, rather than to the conceptual system.48
The French solution fits very much the common law outcome.
On the whole, English law operates without a concept of the 'public
service'. You will not find the term defined in any English
administrative law textbook. But any French lawyer would discern
the germ of the concept (albeit in a narrow form) behind some of
the distinctions made to determine whether it is appropriate to use
Order 53 in a dispute about an employment contract. Thus the
courts have had to work out whether a doctor employed by a police
authority or under contract to a family practitioner committee is
performing a public law or a private law activity.49 It sufficed that
it was a contractual activity to make it private law. By contrast, the
debates in the case-law about the status of policemen and prison
officers, as well as the sanctions imposed by the Civil Service
Appeal Board, rely on ideas such as the exceptional powers of the
employer (to dismiss at will) and the absence of a conventional
contract (an office, not a contractj.l'' In addition, there is a strong
public service idea within the philosophy of politics and public
47 De Laubadere, supra note 45, p. 45. But, on particular issues, eg whether

certain employees of the administration are to be treated as public law employees ('Ie
personnel de I'administration') or private law employees ('les collaborateurs
exterieurs a I'administration'), there may be a single criterion which has replaced the
bundle of indicators: see id, vol. 2 (9th edn, Paris 1992), para. 8.
48 R. Sacco, La comparaison juridique au service de la connaissance du droit,
(Paris 1991), p. 139.
49 R v Derbyshire CC, ex p Noble [1990J PL 266; Tbrani v Argyll and Clyde
Health Board (No.2) 1990 SLT 118; Roy v Kensington and Chelsea Family
Practitioner Committee [1992J 2 All ER 705.
50 See R v Home Secretary, ex p. Benwell [1985] QB 554, McClaren v Home
Office [1990] fCR 824; R v Civil Service Appeal Board, ex p Cunningham [1991] 4
All ER 310; R v Army Board of Defence Council [1991] COD 191; B. Hepple and S.
Fredman, Labour Law and Industrial Relations in Great Britain (2nd edn, Deventer
1992), paras. 117-9.
administration. Thus, even the Thatcher Government was driven to
write in 1988: 51
Comparison with the private sector has to be treated with caution. In the
private sector there is a direct relationship between commercial success-as
measured by profitability and market share-and the standard of customer
service. The public sector position is more complicated and in many
circumstances distinctly different. In general the reasons for providing a

service in the first place, the nature of that service and the manner in which
it is delivered, are not dictated by markets. In these circumstances the
balance between public expectations and the level of service to be provided
is decided on the basis of political judgements about economic and social
priorities.
What should we conclude from this? We should not agree totally
with Lawson. The French are just as prepared as we are to proceed
with half-baked concepts, like 'service public', and to apply them in
a pragmatic (existentialist) way. The difference, if any, lies in the
academic cultures by which these legal concepts are presented and
transmitted, rather than in the approach of judges, which appears
almost equally pragmatic on both sides of the Channel Tunnel. The
French academic tradition is perhaps more given to conceptual
rigour and greater analysis than the British. The latter is less
inspired by the traditions of Descartes and the scholastics, and
more by utilitarianism and pragmatism. That does not make the
latter less rigorous, but merely makes it interested in different
questions-ideas and concepts are treated more as functional tools
than as of ideological value. Such an academic perception in Britain
is closer to the judicial approach in both countries, and simply
reveals the well-known fact that the judiciary is the traditional
leader of the English legal tradition. 52
Barry Nicholas has writterr':'
Because French law, at least as presented in the Code civil, is a complete

and internally coherent system, any part of which may ... illuminate any
other part, and because the principles or rules are broadly formulated and
therefore call for more elaborate ratiocination when they are applied, the
51 Cabinet Office, Service to the Public (London 1988), para. 1.5.

52 See A. Paterson, The Law Lords (London 1982), p. 83; R. Goff, op. cit., pp.
185-6.
S3 See B. Nicholas in D. Harris and D. Tallon, Contract Law Today, p. 13.
80 John Bell
French lawyer undoubtedly sets great store by the intellectual coherence of
his system and by the elegant manipulation of large-scale concepts than
does his English counterpart.
But we may ask who is really doing the presentation of the French
legal system and who is 'the French lawyer' here. I suspect that
there is an important sense in which 'intellectual coherence' and
'elegance' are not general French virtues, but are predominantly

those of an academic sub-culture. As I shall consider in a moment,
the judicial (and for that matter practitioner) input into the
literature about French law has been significantly more limited than
in the United Kingdom. There have not been the major series of
public lectures such as the Holdsworth Society lectures in
Birmingham or the Hamlyn lectures in which judges are called
upon to reflect on the nature of their work. We comparative
lawyers do our researches mainly through reading academic
treatises and talking to other academics (as we did in the series of
seminars about which Barry Nicholas wrote that passage which I
have just quoted). The tale of a concept like 'public service' on
which even the academics have had to give up the search for
'intellectual coherence' and 'elegance' should caution us that, if we
compare courts with courts, the legal traditions may not be as
radically distinct, at least in relation to conceptualism. Barry
Nicholas rightly emphasises a key point later on in the same book
where he arguesr'"
A realistic appraisal [of both legal systems] must also take into account the
tendency within any legal system for judges to balance the use of
traditional concepts with their intuitive feeling of justice. The foreign
observer will note that the French judge is adept at this process.
III. Legal reasoning and argumentation

It is a commonplace of comparison between English law and
French law that attention is drawn to differences in the style of legal
texts, be they statutes or judicial decisions, and conclusions are
drawn therefrom that there is a wide gap between approaches to
legal reasoning in the two sysrerns.P Superficially, the argument
54 Ibid, p. 389.
55 Ibid., p. 389, para. 19; D. Lloyd, Introduction to Jurisprudence (6th edn by
M. Freeman, London 1994), p. 1265; Zweigert and Katz, op. cit., pp. 70-1.
seems to be that if the texts to be interpreted and the reasons given
for decisions are different, then something different must be going
on in the reasoning process. We are seemingly faced with the idea
that lawyers think differently. Barry Nicholas has expressed the
point very clearly:
It is clearly established that lawyers in each country approach a legal
problem and attempt to solve it in their own way. It is more difficult to find

the reasons for the different approaches. It seems that the different
reactions can be explained by some fundamental mental attitudes."
I would want to argue that, to a great extent, this is an illusion
created by the form of presentation of the legal systems, notably in
academic writing. That is not to say, of course, that there are not
major differences in the form of argumentation used, both in
judicial decisions and in many academic writings.
The idea that legal reasoning differs in the two systems rests on
three features:
(a) the conceptual apparatus differs in the two systems, so that one
uses different starting points in many cases;
(b) the formal legal sources are different, so one reasons with
different points of reference; and
(c) more profoundly the style of legal thought differs-in France it
is more conceptual and deductive, in England more pragmatic
and inductive.
To a great extent, none of the supposed difference stands up to
scrutiny, at least as providing a fundamental difference between the
systems.
(a) Concepts
We have already seen that the French often use their concepts in a
pragmatic way, much as English lawyers do. It may be that there
are differences in the specific concepts used, so that the framework
for reasoning differs. We may be faced with a contract problem in
one system, and a tort problem in another, and it may be that
certain differences in values are expressed through the concepts, eg
the concept of 'laicitie' in education. But in neither case is it a
problem of how lawyers think with the concepts. Both systems are
56 Contract Law Today, p. 385.

82 John Bell
sufficiently familiar with fictions (such as promissory estoppel, or
the presumed stipulation by a railway passenger in favour of his
nearest and dearestr'" used in order to reach desired solutions
where there is a will to do so. The concepts operate as analytical
devices which can map out the values which the law is to serve, but
they are typically subservient to the underlying value judgments. If
an English lawyer says that his legal system does not accommodate
'gratuitous contracts', because a 'contract' is conceptually a

promise for reward, what he is really saying is that English law is
not convinced, as a matter of values, that gratuitous promises, as
such, should be enforced (though they may be enforced sometimes
as trusts, bailments, etc).
If conceptualism points to differences in legal reasoning, it does
not suggest that lawyers are driven by concepts, but rather that
concepts are expressions of a focus of attention. In that sense,
concepts have an important role in demonstrating style and
tradition. It is this difference of focus to which Geoffrey Samuel
points when he suggests that French lawyers think in terms of
'rights' while English lawyers think in terms of 'interests'. English
lawyers don't start with rights, but with wrongs, duties and
interests, and then work out whether a remedy is available. Under
this way of looking at issues, there are fewer a priori arguments for
a remedy-a remedy will exist where there is a good argument for
it. By contrast, those who start from rights which have been
breached, appear to have an easier time of establishing the
availability of a legal rernedy.l" Yet this may not be a very strong
difference, because it is hard to establish that either ,legal system
fails to provide a remedy malgre lui.
More importantly, the existence or non-existence of certain legal
institutions may encourage different legal questions to be asked in
the different countries". For example, French law has the
institution of interlocutory damages (the refere provision of art.
57 See, for example, Central London Property Trust Ltd. u High Trees House Ltd
[1947] KB 130; Cass.civ., 6 Dec. 1932, Chemins de fer de Paris a Orleans c. Vve
Noblet, D. 1933.1.137 note Josserand.
58 G. Samuel, ' "Le droit subiectif" and English Law' [1987] CLl 264; Zweigert
and Katz, op. cit., p, 70.
59 See Nicholas, in Contract Law Today, pp. 384-5, and see also his discussion
of the consequences of differences in the classification of issues as 'law' or 'fact':
ibid, p. 393.
809 c.proc.civ., which is frequently invoked by a party seeking

performance of a contract. (For example, contractors obtained
some 64m F against Transmanche Link during the construction of
the Channel Tunnel.) Indeed, it has more recently been strengthened
by the interlocutory injunction to perform the contract under art.
809, para.2, c.proc.civ.). By contrast, English law does not and so
questions arise about the duty of the victim of the breach of

contract to mitigate, or about the date on which the loss suffered
should be assessed. The legal issues generated by the same set of
facts in each country may not, therefore, be the same. To that
extent, legal problems are shaped, almost constructed, by the legal
rules in place. But this is not to say that the differences are
profound. The examples just given arise from similar social needs,
but are resolved through different legal institutional means.
This leads to two consequences. First, the legal categorisation of
problems will not always be the same between different legal
systems. Secondly, what is asked of the law in the two systems may
be different. The French juge des referes has to be more inter-
ventionist than a common law judge, to whom the parties only
come when they have used the market to obtain the contractual
performance which was promised.t''
(b) Legal sources

In one sense, there is a radical difference between English and
French law as regards sources. French law gives authority to the
constitution and ratified treaties, English law recognises neither
constitutional review and is dualist. Formally, French cases are
autorites de fait and not autorites de droit, while English precedents
are binding in some circumstances. There is also the problem of the
authority of legal writing (la doctrine). We seem here to have
different hierarchies of authority, and we might expect this to affect
legal reasoning.
But the differences outlined in the textbooks are not sufficient to
60 Another example would be periodic payments in person injuries cases (the

rente viagere) which in English law are relegated to insurance practice, not what the
courts can order: see Law Commission, Structured Settlements and Interim and
Provisional Damages (Law Com. 244; 1994). As a result, discussion on damages for
personal injuries differs in the two countries: see Viney and Markesinis, supra note
2, pp. 101-8.
84 John Bell
present an accurate guide to legal reasoning. The presentations of
French law are by academics looking at the formal authority of
sources of law and how these are deployed in formal legal
argumentation, eg in court judgments and academic treatises.
English law tends to have two sources of analysis-similar
presentations by academics and reflections by judges both in court
and outside, and it is the combination of these two sources which is
used by theorists of legal reasoning." My argument will be that,

comparing like with like, differences in legal reasoning are not
significant.
The strongest case for difference lies at the constitutional level,
since France has a system of constitutional review exercised
through the Conseil constitutionnel. 62 But only that court can
strike down statutes as unconstitutional before they are promul-
gated, for the rest of the courts the theory of the' loi-ecran' applies
in that the loi creates a screen between the constitution and its
application in a specific case-the civil or administrative court must
apply the loi as promulgated without questioning its validity. In
other words, most judges find themselves in the same position as an
English judge, bound to apply the ordinary law without being able
to invoke a higher norm, except by way of interpretation. On
treaties, art. 55 of the Constitution provides that ratified treaties
have a higher status than loi. But this is also misleading, because
art. 53 provides that most treaties must be ratified by a loi passed
by Parliament. So, in practice, treaties have authority as domestic
legislation. Now that does not take us very far from English law
where a treaty has no formal authority in domestic law unless
passed as a statute by Parliament, but priority is given to it by way
of interpretation.v' At that point, the real issue of difference is
whether a treaty prevails over subsequent enactments. English law
operates a presumption of interpretation and French law a rule of
priority; hut I would not wish to suggest that there is a world of a
difference here.
Attention is frequently drawn to the different place of doctrinal
61 See D. N. MacCormick, LegalReasoningand LegalTheory (Oxford 1978); J.

Bell, Policy Arguments in Judicial Decisions (Oxford 1983).
62 See J. Bell, French Constitutional Law (Oxford 1992).
63 See Cross on Statutory Interpretation (3rd edn by J. Bell and Sir G. Engle,
London 1995), pp. 162, 183-6.
legal writing in English and French law. La doctrine does have an
important place in what lawyers treat as authoritative in France. By
contrast, Lawson argued that:
In England orthodoxy is guarded not by the writers on law, who are often
critical and even heretical, but by the Bench, and above all, by the Bar.
Orthodoxy means adherence to professional tradition."
But that position is changing as university legal education, under

the influence of people such as Lawson, has become an active part
of the English law scene. Both through the Law Commission and
through legal writings of high quality, academic writers are having
an important role in shaping the development of the law, and are
increasingly cited by judges/" The role of doctrine is a function
both of the stage of development in academic life and the
intellectual strength of the Bench. While la doctrine may well be
cited a great deal in the Cour de cassation, it is rarely cited in the
Conseil d'Etat, where the phenomenon of judge-made law is even
more strongly visible than in English law. It is members of the
'house' who.are cited, often in their course books prepared for ENA
or its classes preparatoires, rather than academic writers. So, again,
a nuanced answer has to be given about the contemporary
difference between the status of doctrinal legal in each system. For
this reason, it seems appropriate that Bernard Rudden has moved
the discussion of the authority of doctrine and jurisprudence from a
general section on French law as a whole to an introduction to the
study of private law. 6 6
Although much is made of the stylistic differences between
English and French legislation, the practical differences are more
difficult to trace. As Barry Nicholas points out, significant detail is
often left to administrative regulation'", such that the overall
impact is perhaps not so different. For instance, the French
64 H. Lawson, The Comparison: Selected Essays (Amsterdam 1977), p. 97.

65 See P. Birks, 'Adjudication and Interpretation in the Common Law: A Century
of Change' (1994) 14 LS 156, esp. 166-71; R. Goff, 'In Search of Principle' (1983)
69 Proceedings of the British Academy 169.
66 See O. Kahn-Freund, B. Rudden, and C. Levy, A Source-book on French Law
(3rd edn by B. Rudden, Oxford 1991), pp. 242-58. Cf. C. Dadomo and S. Farran,
The French Legal System (London 1993), pp, 39-44; A. West et al., The French
Le~al System: An Introduction (London 1992), pp 55-62.
7 In D. Harris and D. Tallon, Contract Law Today, pp. 11-12.
86 John Bell
equivalent of the Unfair Contract Terms Act 1977 contains little
detail, but leaves most of the issues to be determined by
administrative regulation. By the time you get down to the
regulation on after-sales service contracts (whose arrete specifies all
the products to which it applies), you wonder whether English law
is not, after all, perhaps less focused on minutiae than is first
apparent when reading the sratute.t"

(c) Legal reasoning and case-law
Legal reasoning in case-law might appear more promising. As is
well known, the formal French judgment from a higher court
consists of a single statement of reasons, phrased as a single
sentence, which is deductive in form. It follows the pattern of the
Roman Rota in providing a summary of the conclusions reached by
the court which justify (in purely legal terms) the decision
reached.t" The contrast with English judgments is captured in the
manual of how to write a judgment of the COUf de cassation in
which Mr. Perdriau writes:
Nous estimons ... qu'il importe de s'abstenir de "motiver les motifs", en
entendant par la que, si, dans une decision de justice, l'inserrion de
veritables motifs repond a une absolue necessite, I'explication de ces motifs
s'eloigne du domaine du droit en relevant de considerations plus ou moins
subjectives ou conjonctureIles, et n'a par consequent pas a etre faite. 7o
There is an obvious difference of view about what should be
published by way of justification for the decision. In part, this
relates to the question of the function and audience of a judgment.
For the French, the judgment of the higher courts has the function
of stating interpretations of the law to be followed by the lower
courts and satisfying their hierarchical superiors within the court or
in higher courts that the decisions have been properly taken. One
gives reasons in order to avoid censure. By contrast, the English
judgment is now an exercise in persuasion-it encourages the legal
community (and indirectly the public) to support the decision as
68 Loi n° 78-23 of 10 January 1978, art. 35 on the protection of consumers, and

its application in decret n" 87-1045 of 22 December 1987 relating to after-sales
contracts, JCP 1988.III.60938.
69 F. Ranieri, 'Styles judiciaires dans l'hisroire europeenne: modeles divergents ou
traditions communes?' (unpublished paper to IHEJ conference, Paris June 1994).
70 A. Perdriau, La pratique des arrets civils de fa Cour de cassation. Principes et
methodes de redaction (Paris 1992), para. 1299.
right. This explicitness of argumentation has 'led Markesinis to
suggest that the common law judgment is an ideal pedagogic
tool 71-you learn how to view the law by reading an English
judgment, but you can remain in the dark about the reasons for the
solution adopted by the French court. But I would argue that this
difference in rhetorical form and in the function of argumentation
does not betray a difference in reasoning.
I will rely heavily on the observations made by Mitchel Lasser of

the Cour de cassation/f and my own observations of the Conseil
d'Etat 73, both of which (fortunately) reach similar conclusions
about the reasoning of French judges. Lasser had access to the court
files on cases in the Cour de cassation, and so was able to read the
rapport and the draft judgment(s) prepared by the reporter judge in
the case, as well as the conclusions of the ministere public. His
reading of these documents makes it clear firstly that French judges
rely heavily on precedent-he did not find a single case in which
precedents were not discussed. Equally the judges are explicit about
their latitude for interpretation, both in the discussion of possible
grounds of decision, and in the production of as many as 7 different
draft judgments for the court to choose between. Arguments are
thus made in a discursive fashion, drawing not only from formal
legal sources, but also the social and legal policy arguments.I" All
the argument types found in the common law are found in these
sources: formalist grammar, legal adaptation, equity, institutional
competence, and personification of the author. As a result, he
concludes that the formal portrait of the judge as the mouth of the
law, proceeding by deduction from legal texts to their application
in concrete cases is seriously misleading. The 'unofficial portrait'
revealed by the practice of the courts demonstrates a judge who is
involved in creating the law and who does so in an explicit and self-
conscious fashion, if you know where to look for public statements
of this position:
71 'A Matter of Style' (1994) 110 LQR 607 at p. 610.

72 'Judicial (Self-)Portraits: Judicial Discourse in the French Legal System', (1995)
104 Yale LJ 1325.
7] J. Bell in G. Hand and J. McBride, Droit sans [rontieres (Birmingham 1991),
211, esp pp. 224-32.

74 He illustrates this from the surrogacy case discussed in J. Bell, 'Conceptions of
Public Policy', in P. Cane and J. Stapleton, Essays for Patrick Atiyah (Oxford 1991),
at pp. 106-7.
88 John Bell
Even the most cursory analysis of these documents reveals that there
exists-within the French civil legal system-a vibrant and contested
institutional and discursivesphere in which French academics and judicial
magistrats seek to produce coherent judicial responses to contemporary
legal problems.i'"
Indeed, the annual report of the Cour de cassation is one of the
most revealing documents, since it explicitly acknowledges the
interpretative freedom of judges (and the number of different

judgments which would have been legally defensible), and judicial
creativity.P More recently, that court has gone so far as to
participate in the publication of a book of essays on its doctrinal
role". My own experience of sitting in deliberations in the Conseil
d'Etat over a six month period and in some other courts produced a
very similar picture. I not only read through many files, but also
listened to many hours of discussion among judges in the seances
d'instruction and in the occasional delibere. Like Lasser, I found
that the discussion among administrative judges was much the
same as among common law judges-arguments from precedent,
consequentialist and policy arguments, as well as the more
colourful passages which would have graced a judgment from Lord
Denning,""
The clear conclusion from the two studies is that judicial
reasoning is not substantially different. As Martin Golding suggests,
the answers given by courts are not generally derivable from legal
propositions alone, but often need support from substantive
premises drawn from the prevailing standards of conduct and
values,?8 This applies to France as well as to common law
countries. Judges in both systems have the similar task of
74a Lasser, 104 Yale LJ at p. 1402.

75 See, for example, Rapport annuel 1992 (Paris 1993), p. 67; Rapport annuel
1975 (Paris 1976), p. 101: 'we are pleased to point out that this Court contributes to
the creation of the state of law which will shape the society of tomorrow.'
76 Cour de cassation, L'image doctrinale de la Cour de cassation
(Paris 1994). For an analysis of the techniques by which cases come
to form the doctrine of the Cour see E. Severin, De La jurisprudence en droit priu«
(Paris 1985), Part II.
77 P. Malaurie and L. Aynes, Cours de droit civil, tome I (2nd edn., Paris 1994),
pp. 330-3 and J. Ghestin and G. Goubeaux, Traite de droit civil, introduction
generale (2nd edn., Paris 1982), pp. 382-3 dearly mark out the importance of policy
arguments in French legal interpretation, but this is less emphasised in other works,
e.g, H. L. and J. Mazeaud, Lecons de droit civil (6th edn, Paris 1980), 6th lesson.
78 'Substantive Interpretation in Common Law Elaboration', ARSP, Beiheft 53,
23 (1994).
interpreting texts within institutional requirements of consistency
and justice. That they justify (at least to themselves and to each
other) their solutions in much the same way is not really surprising.
After all, both societies share similar ideas of justice. The difference
really lies not in the process of reasoning, but in the purpose of the
exercise of reporting the decisions. To provide summaries of what
has been decided as a point of reference for the future is the exercise
undertaken by the Cour de cassation and Conseil d~Etat judgments,

by the Italian Massimario, and by the old common law abridge-
ments and digests. Letting the legal and general public know about
the reasons behind those decisions, and sharing the complexities of
the problem is not needed to the same extent. The French and
Italians publish the rapports and. the conclusions only rarely, and
the English provide reasoned judgments only in a limited number of
cases, mainly in the higher courts. In short, we have a difference in
the character and perceived necessity of the reporting of judicial
decision, not in how they are arrived at. .
My suggestion is that supposed differences in the structure of
legal reasoning (a deep feature of a legal tradition) turn in reality
into differences in presentation of legal argumentation by judges
and in the way the legal sources are set out in academic texts. To
take one example, the discussion by Troper of statutory interpreta-
tion in France makes very little use of the arguments of the
ministere public or of the reporter-judge and so French legal
reasoning in this area appears more different from common law
reasoning than it actually is.79
In an explicitly justified system, legal arguments are less likely to
be restricted to deduction from formal sources of law for the
reasons Martin Golding gives. The conclusion is not that novel.
Rodolfo Sacco has already pointed out that the legal rule set out in
academic legal writing is not necessarily the same as that
pronounced by the courts in their judgment, and may be different
again from that actually applied by the courts, not to mention the
rule set out in the original statute. 80 He gives the label 'formants' to
these different features: each is both a form of the legal rule and a
factor which contributes to the construction of the legal rule in the
79 In MacCormick and Summers, supra note 5, ch 6, esp pp. 179-84; d. J. Bell,

in P. Cane and J. Stapelton (edd.), Essays for Patrick Atiyah (Oxford 1991), pp.
105-10. 80 La comparaison ;uridique, p. 35.
90 John Bell
system viewed as a whole. To understand a legal system, we have to
understand all these different presentations of the law, and in
comparative law, we have to be 'sure which 'formant' we are
comparing in each system. By analogy, I want to suggest that, in
legal reasoning, we need to be wary of comparing simply the most
accessible presentations in each system: the academic analysis in
France and the English judgment (supported by extra-judicial
statements from judges and some academic writings based on

these). By paying attention to comparability in the type of
presentation (or at least ensuring similar contextualisation) we can
get closer to any real differences between the systems (which I
suggest are not so great). Overall, it may be the institutional setting
that is a dominant feature-what judgments are intended to do-
rather than differences in legal thinking in the two countries.
IV. Law and non-law

Basil Markesinis suggests that there may be a 'mentality gap'
between lawyers of different countries, and this view is echoed by
Geoffrey Samuel and Pierre Legrand.f ' I would want to argue that
this should be interpreted not as a statement about how lawyers in
different countries think, but a statement about how law is viewed
and used. In pursuing this analysis, I want to make use of the
distinction of Jean Carbonnier between 'droit' and 'non-droit', law
and non-law. For him, 'non-law is the absence of law in an area in
which law would be expected to be found'. 82 In my interpretation,
non-law involves a normative regime which lies outside the law in
one country, but within the law in another. In all my examples,
England is the country of non-law, France the country of law. My
argument would draw inspiration from the contention of Kahn-
Freund that: 83
The comparative lawyer's investigations cannot stop at what is in his own
or in any other legal order happen to be the frontiers of the law. To
compare law and non-law, or, if you like, positive law and positive
morality in the Austinian sense, may be one of his principal tasks. If he fails
to do so, he may see the law in a distorting mirror.
81 B. Markesinis, The Gradual Convergence (Oxford 1994), p 2; G. Samuel, The

Foundations of Legal Reasoning, p. 28.
82 Flexible droit (7th edn, Paris 1992), p. 23.
83 O. Kahn-Freund, Selected Essays (London 1978), p. 286.
I start with the views of non-legal observers. John Ardagh
remarks that 'the attachment to legalism has always been one 'of the
strongest and most pervasive aspects of French life'84, though he
does remark that the French spend much of their time trying to get
round the numerous legal rules which govern them. By contrast, the
British are used to ideas such as 'gentlemen's agreements' where
things are regulated in a non-legal, but equally effective way.85 I
want to suggest that this caricature contains more than an element

of truth.
(a) Election disputes

To begin with, the French seem obsessed by legal rules. Take
elections to parliament and the presidency. In France, the electoral
code covers 584 articles, giving details down to the size of the ballot
paper in numbers of millimeters (art. R 30). Alleged breaches of the
code gave rise to some 800 decisions by the Conseil constitutionnel
in respect of parliamentary elections in 1993 alone. By contrast,
English regulation is light. There are few legal requirements as to
election broadcasts and canvassing, they focus merely on election
expenses. The last successful election petition in relation to a
parliamentary election was over 30 years ago and there have only
been some 10 parliamentary election petitions since 1960.86 The
idea of law having a significant role in this area seems odd to British
lawyers and politicians.V
(b) 'Sleaze' and corruption in public life

Most symptomatic of the approach to law in the two countries is
the issue of 'sleaze' and political corruption. You cannot have
opened a British or a French newspaper in 1993, 1994 or 1995
without coming across some reference to the latest tale in the saga
of political corruption. Whether it is the financing of political
parties in France, or gerrymandering in Westminster City Council
for party advantage, the positions in business gained by ministers
84 France Today (Harmondsworth 1990), pp 620-1.

85 Ibid, p. 621.
86 P. Coleman, (1995) 145 New Law Journal 157; Bristol South-East Election
Petition [1964] 2 QB 257.
87 See H. Rawlings, Law and the Electoral Process (London 1988), pp. 221-30.
He suggests that there is little interest shown by politicians in using election petitions
to undermine the outcomes of elections.
92 John Bell
and civil servants on retirement, or personal gain by politicians
from their office, the stories have run and run in both countries. But
my concern is not the substance or truth of the allegations (which
have remarkable similarities in many cases), but the form of inquiry
which is taking place. Take a headline from Liberation of 9
November 1994: 'Urba: Emmanuelli sera juge en correctionneIle'.
The story recounts the failure of leading party figures of the
Socialist and communist parties to prevent themselves being sent

for trial in relation to 'false invoices' provided in relation to a
planning application in order to boost party funds. Similar cases are
pending against politicians from the RPR and the PR. 8 8 The cases
are taken at random, but they have a common theme: all the
investigations of misconduct in relation to party finance are led by a
juge d'instruction and involve criminal charges being brought. The
same is true of personal corruption by ministers, eg in buying a villa
with the proceeds. It has been procureurs like Bruno Cotte of Paris
and judges like Renaud Van Ruymbeke of Rennes who have
spearheaded the investigations.
Contrast this with the United Kingdom. The 'cash for questions'
inquiries into David Treddinick and Graham Riddick are being
held by a parliamentary committee, the Committee on Privileges,
sitting in secret and reporting to Parliament. Sir Robin Butler
conducted the private inquiry into ministers Neil Hamilton and
Tim Smith accused of receiving benefits from the AI-Fayed family
without declaring them on the register of Members' Interests. The
matter is then being pursued by a government-appointed commis-
sion chaired by Lord Nolan examining the conduct of public life.
This commission is holding hearings and will produce recommend-
ations, but will not seek primarily to attribute blame. The Scott
Inquiry into the 'Iraq supergun' affair has revealed that ministers
had hidden from Parliament a change in policy with regard to the
export of arms to Iraq, and then permitted a trial to take place of
those businessmen cooperating with them in this. They had tried to
keep secret certain documents which would have implicated the
government, but exculpated the accused on ground of Crown
immunity. This was a specially appointed inquiry with an inquisit-
orial approach, yet its report on past events is unlikely to produce
ss See Liberation, 9 November 1994 on Michel Roussin (Minister of Cooperation,
RPR), and Gerard Longuet (Minister for Industry) er J.-P. Thomas (PR), Figaro,
29-30 October 1994.
criminal charges. In both cases, we are likely to see recommenda-

tions about introducing codes of practice for ministers, politicians,
and civil servants, perhaps with some legal regulation. The areas
involved are governed largely by convention, not law, and are likely
to remain so.
Even more precise equivalents of the 'false invoice' cases in
France, where political power in Westminster is alleged to have
been abused to serve party political ends, we see not a judge or

prosecutor, but a district auditor conducting an inquiry, holding
hearings, and seeming likely to impose a financial surcharge, rather
than initiate criminal charges. 89 Criminal charges seem only likely
where individuals use local government power to line their own
pockets, as in the 1970s case of T. Dan Smith and John Poulson.
Contemporary allegations against Lambeth Council and Derek
Hatton have yet to produce any convictions.
I have spent some time on these cases because they reveal
something about the legal cultures of the two countries. The French
give central place to the criminal process and to law-no one has
dreamt of setting up a parliamentary committee, and the equivalent
of a Nolan commission on ethics in public life is merely a
government advisory committee. The main clearing up, following
Italian and Spanish precedents, is done by the judges. In Britain, the
criminal law is almost totally uninvolved. The police, the CPS, and
criminal judges have had little to say. We have resorted to the
political process: the Committee on Privileges and parliamentary
pressure, to the financial audit process, and to special inquiries
headed by judges such as Lord Justice Scott and Lord Nolan in
order to clear up the corruption. Lawyers and judges are deeply
involved, but are to apply their professional skills often in a non-
judicial way. The rules in existence, and probably the rules which
will emerge, are likely to be codes of practice, moral injunctions
with little legal force (though,as will be seen with regard to the civil
service, there is perhaps a greater willingness now to make use of
legal solutions to the regulation of areas such as this).
I am not suggesting that one system is better or worse than
another. There are simply marked differences. In delivering a paper
on sleaze and corruption in Britain to the judiciary and bar in Le
Mans, one of the centres of the Urba-Greco case, I was made aware
89 See The Guardian, 5 November 1994.

94 John Bell
of the cultural difference in the approaches of the two systems. For
the French, it was natural that the matter should come within the
province of the criminal judge. For the British, the intervention of
the criminal law remains strange. In short, the British approach is
to see 'sleaze' as the breach of non-legal norms, generating the need
for a non-judicial inquiry, leading to the finding of moral blame,
and the promulgation of more, predominantly non-legal rules. In
France, we are faced with similar facts characterised (as they could

be in England) as breaches of the criminal law, requiring judicial
investigation, the finding of criminal guilt, and the promulgation of
additional legal rules.
This failure to resort to law is not peculiar to political corruption.
Another striking area of difference is medical negligence. In France,
it is not unusual for the doctor in a medical negligence case to be
prosecuted in the criminal courts for assault or manslaughter. In
Britain this is a rarity. For us, it is sufficient if a civil remedy of
compensation is provided. If there is any professional delinquency,
then this is dealt with by professional disciplinary procedures. Both
of these exist in France, yet there is a perceived need for a public
blaming process which is part of the French conception of justice. It
is this conception of what justice is for which lies behind the
prosecution of the politicians in France. By contrast, the British
manage the allocation of blame as a social process giving rise to
social disgrace and only rarely to criminal charges.
(c) Public non-law

A further example lies in the realm of the distinction between public
law and private law. If one accepts, as most societies do, that there
is a difference between the treatment to be accorded to the state and
that to private individuals, then it seems to me that there are three
main options. The first is to have two separate sets of rules: one for
the state and public bodies, and another for private individuals.
This is, broadly, the French solution. The second is to have a
common law for public and private bodies which is then modified
in significant respects to take account of the special position of the
state. Italy is closer to this model. The third is to have a common
law for public and private bodies and to operate adjustments
outside the law altogether. Until recently, the British, Dutch and
Swedes have had significant features of this kind. Recourse against
the administration in some areas has operated more like a
hierarchical appeal than a judicial remedy. 90 The European Court
of Human Rights has criticised the Dutch and Swedish positions on
the grounds that they did not provide legal rights to redress for
administrative wrongdoing, though it could not be doubted that the
remedies were, in practice, as effective as the outcomes of the
administrative courts of other countries. The British position has
been perhaps less blatant, but has broadly shared the same

philosophy of how to handle specifically public law issues. I will
take only two examples: internal civil service regulation and the
compensation of the victims of state action.
CIVIL SERVICE EMPLOYMENT
My attention was drawn to the differences between French and

English law on the civil service when I was asked by a colleague at
Paris 1 to give a talk to a DEA class on the duties of the civil service.
Until the excellent work of Fredman and Morris, there was no legal
treatise on the subject, and political science books on the civil
service were of limited help. As those authors point out, 'the unique
feature of the legal framework governing the civil service is the
paucity of statutory regulation'."! I was forced to take the only
sensible course of action and obtain the relevant internal (non-
legal) handbooks from friends in the civil service.
France, like most countries, has a code de la fonction publique
and various other statutes and decrees. A recent official compila-
tion of these texts runs to 892 pages. 92 Until now, there is no
equivalent in Britain. Some areas are well regulated by law, such as
superannuation, but much is not regulated. Even the proposed code
for the civil service is intended to be an internal code of conduct (a
'code de deontologie' as the French would term it), though it may
become a statutory code. 93
Although the basic framework is contained in Orders in Council
90 See the criticism by the European Court of Human Rights in Benthem u

Netherlands (1985) 8 EHRR and v Pudas v Sweden (1988) 10 EHRR 380, Zander v
Sweden (1994) 18 EHRR 175: see Bradley, European Public Law (forthcoming).
91 S. Fredman and G. Morris, The State as Employer (London 1989), p. 23.
92 Statut general des fonctionnaires de l' eta: (joumal officiel, Paris, December
1994).
93 See The Civil Service: Taking Forward Continuity and Change (Cm 2748;
1995), Annex. The proposed 'code' runes to a mere 13 paragraphs, occupying little
over two sides of A4.
96 John Bell
and in regulations and instructions made under them, there was
much merit in Wade's argument that the prerogative exercised in
the GCHQ case was not a prerogative power at all in the sense of
an extraordinary power belonging to the Crown, but was merely an
ordinary power to establish internal rules of conduct which any
employer could exercise.l'" There have been doubts about the status
of civil service jobs (contract or not)95, although the contract
analysis is gaining currency as the government seeks to make civil

service conditions more equivalent to those of the private sector, by
negotiating salaries and removing job security. More importantly
from a comparative perspective, there is little scope for appeals
against internal discipline, promotion decisions and the like.
Indeed, even in the treatise of Fredman and Morris, no attention is
given to challenges to promotion (other than in relation to equal
opportunities and collective bargainingl.l" Such disputes are the
bread and butter of many administrative courts and were the
principal reason for the creation of the European Court of First
Instance. In 1993, the Conseil d'Etat alone received 644 cases in
relation to the civil service and 573 in relation to local government
employment (some 12% of all cases submitted to it). Indeed, civil
service cases alone constitute the second largest category of cases
before the Conseil, even though it only hears appeals.
It is only as the civil service moves closer to the private sector in
terms and conditions (e.g. fixed-term contracts, performance-
related and local pay, competing for work) that it moves into legal
regulation to a significant extent. For the most part, it has remained
outside, enjoying more favourable terms and conditions without a
legal framework.
To take another example, in relation to public law, the French
typically distinguish two bases of liability: for fault and equality
before public burdens.V Both are very ancient and belong to the
94 H. W. R. Wade, 'Procedure and Prerogative in Public Law' (1985) 101 LQR

180 at pp. 191--4; cf Fredman and Morris, pp. 24-5.
95 See S. Fredman and G. Morris, [1988] PL 58 and [1991] PL 485.
96 See op, cit. chs 5 and 8: R v Lord Chancellor's Department, ex p Nangle
[1991] COD 484 held that the loss of an increment did not give rise to a judicial
review; see also R v Crown Prosecution Service, ex parte Hogg [1994] COD 237; R
v Home Secretary, ex parte Moore [1994] COD 67; R v Secretary of State for
Education, ex parte Prior [1994] COD 197.
97 See Brown and Bell, pp. 173-92. J. Bell and A. W. Bradley, Governmental
Liability: A Comparative Study (London 1991), ch 9.
common medieval heritage of both our countriea" Equality before
public burdens means simply that where someone suffers for the
good of the community as a whole, that person should be
compensated for her or his loss. An illustration would be the
English Case of the King's Prerogative in Saltpetre'? where a
landowner was compensated when the King, lawfully, extracted
saltpetre for the making of gunpowder. More recently, this could be

seen as the basis for compensation for compulsory purchase (or
expropriation as the French more aptly call it). In France, it is used
alongside fault to provide a remedy. Thus where a prisoner is
released on parole and commits a crime, the State will pay
compensation to the victims.l?" In the absence of fault, there is no
compensation in the United Kingdom, as Hamson and Jolowicz
have pointed out. tot Yet we know that ex gratia payments are
frequently used. They are used to get round the restrictive rules on
fault liability, eg in the case of the failure of government regulation
over the investment organisations Barlow Clowse, the Government
agreed to pay about £150 million in compensation as a result of the
Parliamentary Commissioner's recomrnendations.l'f This is an
example of where the moral pressure of the argument from equality
before public burdens (not to say liability for fault) overrides the
narrowness of legal rules on liability. The whole of the practice on
compensation is not contained in the legal rules.
The difference in 'rnenralire' which is being pointed to here is the
role which law plays in resolving social problems. It is not a feature
limited to public law, but applies equally in private law. t o3
Conclusion
I have been arguing that to find significant differences between legal
systems, it is necessary to focus on key elements of the legal culture
as a whole. I have eschewed rules and focused on key features of
98 See J.-L. Mestre, Introduction bistorique au droit administratif francais (Paris

1985)p. 136 and Part 2, ch.I. 99 (1607) 12 Co Rep 12.
100 Brown and Bell, pp 183-9; C. Harlow, Compensation and Government Torts
(london 1982), Part 4, ch. 1.
101 See C.]. Hamson, (1969] Cl] 272; ]. A. ]olowicz, [1985] cu 370.
102 R. Gregory and G. Drewry, 'Barlow Clowes and the Ombudsman' [1991] PL
192 and 408.
103 See D. Harris and D. Tallon, Contract Law Today (Oxford 1989), pp. 371-4
392-3. '
98 John Bell
thinking like a lawyer: the use of specific legal concepts and forms
of legal reasoning, as well as the way law is viewed as a means of
regulating society. Though many examples have come from public
law, there is ample evidence that they are replicated in private law.
In my introduction, I drew attention to the importance of
procedure, professions and institutions, such as courts, in shaping
the reality of law in a particular country. If the procedure is
different, if you have to encounter different legal professionals, if

you have to go through different kinds of courts or other legal
institutions, this will have a profound impact on your experience of
the law. Indeed, these are the most immediate features of a legal
system which can disorient the foreigner. But, important though
such features are, I have focused on what are suggested to be more
profound differences between the legal systems-what it is like to
think like a lawyer in the different suggestions. My conclusions are
largely sceptical.
Although there are distinctive frameworks for thinking, be they
Lawson's concepts or Samuel's more sophisticated three-
dimensional model of persons, things, and actions, I have argued
that the important driving force for legal thinking is not the self-
perpetuating logic of the legal concepts, but the values which the
law is trying to enforce and lawyers to implement. The legal concepts
are the building blocks which are used to present arguments, but
the values determine the kind of building which is constructed.
Some building materials may be more elegant and aesthetically
pleasing, but the key feature is what can be done in that building.
English lawyers may have concepts like 'the Crown' rather than
'the state' for historical value reasons and, as those values change,
so the legal concepts are changed in terms of content, if not in terms
of form, adapted and may even change fundamentally. Under the
influence of domestic and European values, the concept of 'the
state' is coming into its own in legal terms. But where social values
in societies remain distinct, as 'secularity' (laicitie) the example
shows, then concepts will necessarily remain distinct. I am arguing
that lawyers adopt a fundamentally instrumentalist approach to
concepts. Whereas the criticism is often levelled at continental
European lawyers that they are 'conceptualists', lovers of. concepts
for their own elegance, there is ample evidence that, in fact, the
French are as pragmatic and instrumentalist as the English, not only
in public law areas such as public service, but in private law as well,
for example in the concept of cause. Where we may differ is in the
traditional concerns and presentations of the law made by
academics. French academic writing is more concerned about the
coherence of the conceptual structure of the law than is English
academic writing, but this is certainly not the case of French judges.
Indeed, as Geoffrey Samuel has shown, the use of analogy and
policy reasoning in France is as prevalent in the conclusions of the

ministere public or in the rapport of the reporter judge.'?'
Academic presentations in France as well as from the outside often
argue that French legal reasoning is syllogistic and deductive.V"
But I hope I have demonstrated that this is an illusion created by a
focus on the form of presentation of legal argument, particularly in
the courts and in the traditional style of university writing, which
does not really take account of the substance of legal argumenta-
tion. The evidence is there in the extended forms of legal writing
such as the conclusions of the ministere public or in the rapport of
the reporter judge, as well as in the note by an academic or a judge.
It is no doubt a convenient public image to suggest that law is
rational, impersonal and not the responsibility of the judge or
lawyer, but it not an image which I have ever found judges,
practitioners or academics actually taking seriously.
Although writers like Geoffrey Samuel allude frequently to
differences between common law and contemporary civil law
reasoning, the argument needs to be made in a more sustained
form. Indeed, his conclusion that legal reasoning in any system
involves a 'complex syllogism' or drawing pictures which dispose
the interlocutor to accept the rightness of the solution proposed'"
are applicable equally to both common law and civil law systems.
If such commonplaces of comparative literature don't stand up to
scrutiny, why are they stated? As I have said, the presentations on
which they rely are based predominantly on academic writings.
Academic law has struggled for academic respectability in France as
well as in England. The lectures on French law in the universities do
not predate Blackstone by more than 80 years. Accounts of French
law departments in the 1870s are not enormously different from
accounts of English law faculties 50 years later: much of the
104 G. Samuel, Foundations of Legal Reasoning, pp. 137-9 and 228, and note 77
above.
105 Ibid., p. 137; d. A. S. Meschariakoff, op. cit., p. 92.
106 Op. cit., pp. 143-4 and 209 respectively.
100 John Bell
teaching provided by those in practice and lacking much academic
credibiliry.l'" Academic law is apt to seek credibility by following
paradigms in other disciplines and it may be the excessive use of
the paradigm of law as a science (in the French sense) and the arts
paradigm of the analyse de texte which underplay the scope for
interpretative judgment and value policy discussion in law. By
contrast, judges on both sides of the Channel are faced with
individual cases to resolve and tend to react to the task in similar

ways and for similar reasons. They may reach different conclusions,
but the different arguments are broadly comprehensible by the
other system.
Whereas lawyers think substantially in similar ways in both
systems, I have argued that lawyers are not expected to do the
same. Law is a social institution which fits into a network of other
social institutions and these form a social and political culture. My
illustrations of 'non-law' in England suggest that law has a less
important place in our culture than it does in France. This point
seems to me to highlight another aspect of where law is not self-
contained or self-perpetuating-it is importantly a tool of social
action. I find myself at best supporting the image of 'relative
autonomy of law' as a description of how law adapts to its social
and political environment, rather than the image of 'autopoiesis'v'"
However much the language, conceptual frameworks and practices
of lawyers may be idiosyncratic, the law is continually engaged
with the problems of the outside world. Law draws on a tradition
defined through education, professional life and practice and
within legal institutions, and to that extent it is distinctive. But it is
fundamentally a social institution whose values and objectives are
defined by the community social and political, and its structures,
concepts and role will adapt accordingly and undergo refinement in
order to bring others on board.
Where does this leave comparative law in the current European
context? My argument would be that I find no radical distinction in
ways of legal thinking between French and English lawyers (and,
107 Compare H. S. Jones, The French State in Question, pp. 30-2 with
W. Twining, Blackstone's Tower: The English Law School (London 1994), ch. 2
and fP. 138-9.
10 More on the line of I. D. Balbus, 'Commodity Form and Legal Form: an Essay
on the Relative Autonomy of Law', in C. E. Reasons and M. Rich, The Sociology of
Law (Toronto 1978), ch. 3. rather than G. Teubner, op. cit., p. 95.
had I time, I think the argument could be broadened to other legal
systems fairly easily). Differences are not predominantly deep, but
result from the context in which lawyers have to operate: legal
procedures, institutions, professions and education. Lawyers
throughout much of western Europe operate common norms from
the European Convention on Human Rights and the European
Union (as well as many other international treaties), they work

within common legislative and judicial institutions in the creation
and implementation of such norms. These features of our contem-
porary legal system enable lawyers to engage in a common
endeavour and, in the process, identify what are the strengths and
weaknesses of their own system and those of others. 109 In addition,
there are common features of the evolution of our societies.
Common social problems are confronted such, for example, inner
city deprivation, refugees, racism, the globalisation of financial and
commercial institutions and organisations, mass communications,
information technology, medical experimentation, in vitro fertilisa-
tion, and so on. There are common political problems, as Torbjorn
Vallinder has demonstrated in his collection of articles on 'the
judicialization of politics'. 11 0 Common values and common
problems will typically produce similar solutions, although their
form will necessarily be adapted to the social, political and legal
institutions of particular countries. Comparative law will serve as
one of the tools for getting over the initial disorientation caused by
the way the law in each different legal system is presented and
operates.
I conclude by joining Basil Markesinis in suggesting that legal
education has an important part to play in facilitating common
work on a future European agenda. 111 If we have fundamentally
common ways of thinking as lawyers, then legal education in one
system can be seen as supporting and developing the process of
thinking like a lawyer, even for those who will practice in other
juridictions. Indeed, learning together on common materials seems
an essential prerequisite to working together in building a common
system.
109 See G. Slynn, Introducing a European Legal Order (London 1992), ch. 1; Y.
Galmot in CERAP, Le contr6le juridictionnel de l' administration: bilan critique
(Paris 1991), pp. 229-38.
110 T. Vallinder (ed), (1994) 15 International Political Science Review n" 2.
llt 'A Matter of Style', supra note 21.

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ENGLISH LAW AND

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Sitting in my office, I look out on the clock tower of Leeds

1 University of Michigan Law School, Ann Arbor, 1953.

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.I On the concept of legal culture see H. W. Ehrmann, Comparative Legal

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I. Differences between legal systems

9 Supra note 1, p. 52.

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12 Supra note 1, p. 56. 13 Ibid, p. 209. 14 See infra.

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18 See P. S. Atiyah and R. S. Summers, Form and Substance in Anglo-American

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22 Op. cit., p. 66.

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showing a difference on a specific aspect. Legal concepts and legal

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26 Op. cit., p. 45.

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27 H. S. Jones, The French State in Question (Cambridge 1993), esp. ch. 2.

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32 See my comment in French Constitutional Law (Oxford 1992), p. 181.

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Apart from carrying ideological meaning and disorienting the

42 See J. Bell, 'Religious observance in secular schools: A French solution' (1990)

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44 TC 8 Feb. 1873, Blanco: L. N. Brown and J. Bell, French Administrative Law

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47 De Laubadere, supra note 45, p. 45. But, on particular issues, eg whether

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Because French law, at least as presented in the Code civil, is a complete

51 Cabinet Office, Service to the Public (London 1988), para. 1.5.

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III. Legal reasoning and argumentation

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56 Contract Law Today, p. 385.

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809 c.proc.civ., which is frequently invoked by a party seeking

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(b) Legal sources

60 Another example would be periodic payments in person injuries cases (the

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61 See D. N. MacCormick, LegalReasoningand LegalTheory (Oxford 1978); J.

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64 H. Lawson, The Comparison: Selected Essays (Amsterdam 1977), p. 97.

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68 Loi n° 78-23 of 10 January 1978, art. 35 on the protection of consumers, and

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71 'A Matter of Style' (1994) 110 LQR 607 at p. 610.

211, esp pp. 224-32.

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74a Lasser, 104 Yale LJ at p. 1402.

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79 In MacCormick and Summers, supra note 5, ch 6, esp pp. 179-84; d. J. Bell,

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IV. Law and non-law

81 B. Markesinis, The Gradual Convergence (Oxford 1994), p 2; G. Samuel, The

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(a) Election disputes