The following is a guest post by Nicole Atwill, Senior Foreign Law Specialist.
One of our readers suggested that I write about the role of the doctrine as source of law in contemporary French law. This subject took me back in time to my law school days in Grenoble, France, where I studied under some outstanding professors who themselves contributed several books and many articles to French law and are part of the doctrine. At that time, the role of the doctrine was addressed in an Introduction to Law course for first-year law students. I do not recall that the subject received much academic attention after that, but by the end of the course we all knew what was published, how to best use the material, and about the doctrines great influence upon the development and interpretation of French law.
The term doctrine originally comes from the Greek word doxa, which is translated as “opinion.” From a legal point of view, doctrine has a dual meaning in France: it first refers to the writings of legal scholars, but it is also used to describe these scholars as a group. Philippe Jestaz and Christopher Jamin, two French University professors who co-authored a very interesting article on this topic, cite the definition put forward by French authors Guinchard and Montagnier: Thoughts of the authors. By extension, all the authors. This perfectly reflects the French understanding of doctrine.
Their article, written in English and entitled The Entity of French Doctrine: Some Thoughts on the Community of French Legal Writers, was published in the Legal Studies journal in 1998 (Volume 18 No 4, 414-437). In addition to reviewing the definition of doctrine, the article extensively discusses the power of French doctrine as a body. If you read French and love history, I also recommend their book La Doctrine. Part I of the book addresses the multiple and distant origins of French doctrine from the Roman Empire to the twentieth century.
French doctrine can be found in various sources. The répertoires are encyclopedias divided alphabetically into specific subject headings, each containing references to both laws and cases. For example, the well-known Répertoires Dalloz, which are part of the Law Library’s collection, are frequently used by practitioners. They are of a high scholarly quality in that all the articles have been written by renowned legal scholars. Another source is the treatises (traités), which generally provide for a systematic study of one branch of law, presenting the rules of law that govern the branch, and the interpretation problems that have been identified, as well as their solutions according to the authors.
Another important type of writing is case notes (notes darrêts), which are held in high regard. They provide for a critical analysis of a case, addressing specific issues, the motives for the decision, the nuances of the facts, and comparisons with earlier cases. They are usually found in legal reviews such as the Semaine Juridique, the Recueil Dalloz, and the Gazette du Palais, all of which are found in the Law Library’s collection. These notes are extremely helpful as French judgments are usually short with no separate dissenting or concurring decisions given.
There has been much discussion about whether the doctrine is a source of law in the French legal system. As a general rule, there is an agreement that the doctrine is not a formal source of law but rather a source of inspiration of the rule of law or a de facto authority. In his article La doctrine est-elle une source du droit (“Is doctrine a source of law?”), Jean Paul Doucet, a well-known former law professor, lists the opinions of some outstanding French scholars on this question. I found a few particularly on point and translated them below:
The role of the doctrine is scientific. It clarifies and gives order to existing law. It sketches and inspires the law to come. One, however, cannot say that the opinions it expresses constitute in themselves legal rules (Marty et Raynaud Droit Civil).
The doctrine plays in legal science almost the same role that public opinion plays in politics and this role is considerable. It gives to the law its orientation; it prepares ahead of time many of the legislative and jurisprudence changes through the influence of teaching. Even where the doctrine is unanimous [on an issue] it does not constitute a source of law because the commentators do not have any constraint power. It is, however, through their books that are transmitted scientific principles and legal ideas whose authority dominates the thinking of judges and of the legislator himself (Planiol et Ripert – Droit Civil).
To conclude, the doctrine is not a recognized source of law as it is not vested with any institutional power that authorizes it to create law. However, it still has great influence on the development and interpretation of the law as a de facto authority through its two complementary functions: it first explains all the existing rules of law, provides for their synthesis, points to their imperfections and presents solutions, thereby promoting a better utilization of these laws. It secondly influences the legislator in framing new legislation and guides judges in their application of existing laws.