This document introduces the key legal actors in civil law systems: lawyers, judges, and legal academics. It discusses how lawyers operate without a barrister/solicitor distinction in places like France and Germany. Judges in civil law systems typically follow a career path starting with legal education and exams before serving as judges. Legal academics have traditionally played an important role in developing civil law as the "law of the professors."

1. Introduction to Civil Law
School of Law An Scoil Dlí

2. Introduction to Civil Law
Dr Suzanne Kingston
School of Law An Scoil Dlí

3. Legal Actors in Civil Law systems

4. Legal Actors in Civil Law systems
• Lawyers

5. Legal Actors in Civil Law systems
• Lawyers
• Judges

6. Legal Actors in Civil Law systems
• Lawyers
• Judges
• Legal academics

7. Lawyers

8. Lawyers
• No barrister, solicitor distinction

9. Lawyers
• No barrister, solicitor distinction
• France: Avocat
– Replaced distinction between avocat (presented facts,
pleaded before court) and avoué (prepared case up to
court) up to 1971
– Both: auxiliaires de justice
– Distinction still existed before appellate courts until
beginning of 2010
– Special lawyers before Cour de cassation, Conseil d’Etat:
avocats aux Conseils
– Education
• Masters – 4/5 years – very different experience to IRL
• Bar school – 2 years (including traineeships)
• Exam and admitted to bar; acquisition of practice

10. Lawyers

11. Lawyers
• Germany: Rechtsanwalt - unified profession
– Law degree – 4-5 years
– First state exam
– Referendarzeit (traineeship) – 2 years
– Second state exam

12. Lawyers
• Germany: Rechtsanwalt - unified profession
– Law degree – 4-5 years
– First state exam
– Referendarzeit (traineeship) – 2 years
– Second state exam
• System funded by German taxpayer

13. Lawyers
• Germany: Rechtsanwalt - unified profession
– Law degree – 4-5 years
– First state exam
– Referendarzeit (traineeship) – 2 years
– Second state exam
• System funded by German taxpayer
• Go on to be
– Judge
– Private practice (Rechtsanwälte )
– Notary
– Public administration
– In-house counsel
– Law professor

14. Concept of a “notary”

15. Concept of a “notary”
• Draft legal instruments (wills, conveyances,
contracts)

16. Concept of a “notary”
• Draft legal instruments (wills, conveyances,
contracts)
• Authentication of instruments

17. Concept of a “notary”
• Draft legal instruments (wills, conveyances,
contracts)
• Authentication of instruments
• Retain original documents as public records

18. Concept of a “notary”
• Draft legal instruments (wills, conveyances,
contracts)
• Authentication of instruments
• Retain original documents as public records
• Give legal advice

19. Concept of a “notary”
• Draft legal instruments (wills, conveyances,
contracts)
• Authentication of instruments
• Retain original documents as public records
• Give legal advice
• Quasi-monopolies in district often

20. Concept of a “notary”
• Draft legal instruments (wills, conveyances,
contracts)
• Authentication of instruments
• Retain original documents as public records
• Give legal advice
• Quasi-monopolies in district often
• Different from common law concept of “notary
public”
– Can’t act in contentious issues
– Business, international affairs eg authentication,
administering oaths, taking affidavits for foreign
jurisdictions

21. France: Report Darrois, March 2009

22. France: Report Darrois, March 2009
• Reform of the profession of ‘avocat’

23. France: Report Darrois, March 2009
• Reform of the profession of ‘avocat’
• Allowing in-house counsel to be avocats, though
without the right to plead before courts (at
present: juristes d’entreprise)

24. France: Report Darrois, March 2009
• Reform of the profession of ‘avocat’
• Allowing in-house counsel to be avocats, though
without the right to plead before courts (at
present: juristes d’entreprise)
• Making it easier for avocats to work together in
firms

25. France: Report Darrois, March 2009
• Reform of the profession of ‘avocat’
• Allowing in-house counsel to be avocats, though
without the right to plead before courts (at
present: juristes d’entreprise)
• Making it easier for avocats to work together in
firms
• Reduction of difference between notaries and
avocats – though difference would be retained

26. France: Report Darrois, March 2009
• Reform of the profession of ‘avocat’
• Allowing in-house counsel to be avocats, though
without the right to plead before courts (at
present: juristes d’entreprise)
• Making it easier for avocats to work together in
firms
• Reduction of difference between notaries and
avocats – though difference would be retained
• Draft law: March 2010

27. France: Report Darrois, March 2009
• Reform of the profession of ‘avocat’
• Allowing in-house counsel to be avocats, though
without the right to plead before courts (at
present: juristes d’entreprise)
• Making it easier for avocats to work together in
firms
• Reduction of difference between notaries and
avocats – though difference would be retained
• Draft law: March 2010
• Law published: 28 March 2011

28. Judges

29. Judges
• How are judges appointed in Ireland?
– England/Wales?
– US?

30. Judges
• How are judges appointed in Ireland?
– England/Wales?
– US?
• France, Italy, Germany: career judges
– Initial law degree – same for advocates, notaries,
judges, state attorneys
– State exam to be judge
• France: Ecole nationale de la magistrature, Bordeaux
• Ecole Nationale d’Administration: administrative
judges
• 3 years training
• Examination at end
– Now includes compulsory English language exam

31. Judges

32. Judges
• France
– Complete independence of judges
– No removal or promotion against their will
– Low profile – not well known
– No dissenting judgments or separate opinions
– No/little lateral entry to profession
– Highly respected civil servants
– Separate category: Magistrats du parquet -
together form ministère public
• Civil cases: similar to ECJ advocates general
• Criminal cases: similar to DPP
• Can switch to being judge

33. Judges

34. Judges
• Why the difference?
– Roman law influence – iudex not creative
– Change from pre-revolution creative judging –
judge as a legal expert applying legislation
– Importance of legal certainty and system
– No development of “equitable” jurisdiction
• Unless expressly conferred by legislation
– Fairness vs separation of powers?
• Eg obligation to negotiate “in good faith” in civilian
contract law – Art 1337 Italian civil code, Art 242
BGB
• Eg fewer powers to find contempt of court in civil law
tradition

35. Judges and statutory interpretation

36. Judges and statutory interpretation
• Good illustration of difference in judicial role: To
what extent do judges have power to interpret
statutes liberally?

37. Judges and statutory interpretation
• Good illustration of difference in judicial role: To
what extent do judges have power to interpret
statutes liberally?
• Traditional civil law approach: little discretion

38. Judges and statutory interpretation
• Good illustration of difference in judicial role: To
what extent do judges have power to interpret
statutes liberally?
• Traditional civil law approach: little discretion
• Rationale

39. Judges and statutory interpretation
• Good illustration of difference in judicial role: To
what extent do judges have power to interpret
statutes liberally?
• Traditional civil law approach: little discretion
• Rationale
• Implications of this approach: potentially very
detailed statutes

40. Judges and statutory interpretation

41. Judges and statutory interpretation
• Eg Prussian Civil Code: 17,000 paras

42. Judges and statutory interpretation
• Eg Prussian Civil Code: 17,000 paras
• Ban on judges’ indulging “in any arbitrary
deviation, however, slight, from the clear and
express terms of the laws, whether on the
ground of some allegedly logical reasoning or
under the pretext of an interpretation based on
the supposed aim and purpose of the statute”

43. Judges and statutory interpretation
• Eg Prussian Civil Code: 17,000 paras
• Ban on judges’ indulging “in any arbitrary
deviation, however, slight, from the clear and
express terms of the laws, whether on the
ground of some allegedly logical reasoning or
under the pretext of an interpretation based on
the supposed aim and purpose of the statute”
• If in doubt: matter submitted to statutory
commission

44. Judges and statutory interpretation

45. Judges and statutory interpretation
• Contrast: French Civil Code (2281 articles)
– More realistic approach
– No attempt to foresee all possible individual
situations
– Art 4: If judge refuses to make decision on the
ground that the law is silent or obscure or
inadequate, he may be held responsible
– Example: Art 1382-1386 on tort

46. Judges and statutory interpretation
• Contrast: French Civil Code (2281 articles)
– More realistic approach
– No attempt to foresee all possible individual
situations
– Art 4: If judge refuses to make decision on the
ground that the law is silent or obscure or
inadequate, he may be held responsible
– Example: Art 1382-1386 on tort
• Subject to quashing of judicial decisions which
misinterpret written statutes by Court of
Cassation

47. Judges and statutory interpretation

48. Judges and statutory interpretation
• Fallacy of the “self-applying statute” – what
about:
– New problems?
– Gaps in the statute?
– Lack of clarity of language?

49. Judges and statutory interpretation

50. Judges and statutory interpretation
• Different reactions to these problems:
– How do Irish judges approach them?
– Italy: Italian Civil Code 1942
• Actual meaning of words and intention of legislature
• If this isn’t decisive, consider provisions regulating
similar cases
• If this no help, look at general principles of legal
order of State
– Contrast: Swiss Civil Code
• When all aids to interpretation fail, should employ the
rule they would adopt if they were a legislator

51. Judges and statutory interpretation
• Different reactions to these problems:
– How do Irish judges approach them?
– Italy: Italian Civil Code 1942
• Actual meaning of words and intention of legislature
• If this isn’t decisive, consider provisions regulating
similar cases
• If this no help, look at general principles of legal
order of State
– Contrast: Swiss Civil Code
• When all aids to interpretation fail, should employ the
rule they would adopt if they were a legislator
• Why is the Swiss method termed “legal realism”?

52. Judges

53. Judges
• Caveat to this role:
– Judicial review
– Constitutional review
– Constitutional courts – move towards Rechtsstaat
• Austria, Italy, Germany, Spain
• Contrast French Conseil constitutionnel
• Contrast how Irish courts deal with constitutional
review
– Application of EU law

54. Judges
• Caveat to this role:
– Judicial review
– Constitutional review
– Constitutional courts – move towards Rechtsstaat
• Austria, Italy, Germany, Spain
• Contrast French Conseil constitutionnel
• Contrast how Irish courts deal with constitutional
review
– Application of EU law
• Differences in perception of importance and
prestige of judges
– As v practice, academia
– Exception: constitutional courts
– Move up hierarchy based on seniority, merit

55. Legal academics

56. Legal academics
• Civil law: “law of the professors”
– Origins in Roman jurisconsults
– Eg Gaius’ Institutes
– Italian Glossators
– Up to 19th C: German practice of sending cases to a
university for opinion
– Common law: “law of the judges”

57. Legal academics
• Civil law: “law of the professors”
– Origins in Roman jurisconsults
– Eg Gaius’ Institutes
– Italian Glossators
– Up to 19th C: German practice of sending cases to a
university for opinion
– Common law: “law of the judges”
• Law as science
– Certainty, coherence

58. Legal academics
• Civil law: “law of the professors”
– Origins in Roman jurisconsults
– Eg Gaius’ Institutes
– Italian Glossators
– Up to 19th C: German practice of sending cases to a
university for opinion
– Common law: “law of the judges”
• Law as science
– Certainty, coherence
• References to “la doctrine” in general, rather than
individual academics
– Italy: citation of individual opinions banned by Art
118 of Code of Civil Procedure 1941

59. Legal academics

60. Legal academics
• Theory vs reality
– French law of torts
– Increased publication of judicial decisions
• Wasn’t always the case that they were published in
full (eg Italy: facts not published until 1960s)
– Increasing references to “academic” publications in
common law jurisdictions
– Former common law rule banning citation of living
authors in disuse