Comparative Legal System Assignment

Submitted By-

Ishaan Khandelwal

SM0119024

Faculty in Charge

Saheb Choudhury

National Law University, Assam

2020
 1.  A comparative analysis of the Features of German and French Legal System

1.1 Introduction
Comparative Study analyzes and compares two or more objects or ideas. Comparative
studies are the studies to demonstrate ability to examine, compare and contrast subjects or
ideas. Comparative study shows how two subjects are similar or shows how two subjects are
different. In this writing, there will a comparative analysis on the legal system of France and
Germany in detail keeping various factors in mind.
Germany is a democracy, 1919 was the birth of first democracy in Germany and France on
the other hand is also a democracy and the first republic of France was established in 1792
and since then there have been many changes in the legal system of both the countries.

1.2 Features of German Legal System

The Federal Republic of Germany adopted the legal system which is based upon democracy,
freedom and the rule of Law. Basic Law reflects the painful experience of the Nazi Regime
and the lesson taught by the decline of the Weimar Republic. Germany overcame the most
terrible dictatorship when it started to formulate a new democratic constitution. The Basic
Law opens with a catalogue of human rights, crowned by the principle of human dignity. The
acknowledgement of human rights as the fundamental element of German constitutional
system is a response to the disdain of human dignity during the period of 1933 – 19451. For
this reason all imaginable guarantees and remedies were inserted into the Basic Law to
prevent the repetition of the rupture of civilization as it occurred during the period of national
socialism.

The salient features of the German Legal System are:

1. The Supremacy of the Constitution
2. Defenses against the Enemies of Democracy:
3. Resistance ready Democracy:
4. Judiciary
5. Federal System
6. The Rule of Law:
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Available at http://www.kas.de/wf/en/33.22235/
 7. The Electoral System
8. The Bundestag
9. The Federal Chancellor and the Government

1.3 Features of French Legal System

In 1958, France witnessed a grave and very critical situation. On June 1st 1958, the Fourth
Republic came to an end. The National Assembly handed over its law-making power to Gen. De
Gaulle and adjourned. Constitution making was one of the functions that had been assigned to
De Gaulle’s Government by the French Parliament. A small cabinet committee was formed to
draft a constitution, which it prepared within two months. The draft was considered by a
Consultative Committee consisting of 39 members. The committee approved the text of the new
constitution. It was submitted to the people for their approval at a referendum held on September
29th 1958, which was ratified by an overwhelming majority and became operative with effect
from October 4th, 1958 and that was the end of 4th Republic and beginning of, 5th Republic. 
Following are the main features of French constitution of 19582.
The features of French legal system are:
1. A Written Constitution
2. A Rigid Document
3. Mixture of Parliamentary and Presidential System
4. Basic Democratic Principles
5. Strong Presidency
6. Limited Powers of Parliament
7. Bicameral Legislature
8. Constitutional Council.
9. The High Court of Justice
10. Referendum

1.4 Comparative analysis of the Legal System of France and Germany

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Available at http://studylecturenotes.com/salient-features-of-french-constitution/
France and Germany are two of the most powerful nations in Europe and the world. Both
France and Germany are Republic states. France is a Presidential Country where the
president has the ultimate authority over the government. On the other hand, Germany is
known to be a Federal country where there are no sharp separations between different levels
of government and the Chancellor is the most powerful authority in the government. Both
countries have gone through different situations through their history that contributed to the
current formation of the legal system.
During the Fifth Republics in France (1958- Present) the constitution was amended from the
Fourth redefining the relationship between Legislature and Executive. However, Legislature
by its constitutional characteristic have the authority to fire the executive (Premier in France)
by the Law of No Confidence.
On the other side, Germany's legal system was formed in 1990 when East and West
Germanys unified. The German political system also exhibits a balance of power between the
Executive and the Legislature3. The German Chancellor is the head of government and is
usually the leader of the majority party in parliament or coalition. Since the head of the
executive is selected from parliament there is a balance of power between parliament and the
executive.4
Both France and Germany have Bicameral legislature branches, meaning that the legislature
is divided into two main legislative chambers. In France the Parliament is the legislative
branch of the government and is formed of The National Assembly and The Senate. The
main duty of the Parliament is to involve the debate and adoption of laws. In addition,
oversees the government’s exercise of executive authority, although this oversight capacity
was restricted somewhat by the 1958 constitution (5th Parliament). In principle, the National
Assembly and the Senate share the same legislative power. However in reality, the power of
legislation is titled to the National Assembly as the Senate has the power to only delay the
passage of legislation. The National Assembly can overthrow the executive government (as
explained above). Hence, the government in France is necessarily to be in coalition or from
the major party in the Assembly. The Senate is also referred to as the Agriculture chamber as
it represents rural areas of the country5. However, the Senate sometimes can be an effective
3
Kesselman M. & Krieger et al (2009), Introduction to Comparative Politics (5th ed)
4
Kesselman M. & Krieger et al (2009), Introduction to Comparative Politics (5th ed)
5
Mahler, Gregory S. Principles of Comparative Politics,2013
legislative body in terms of its ability to provide a "sober second thought" to legislative
proposals, especially to government proposals. The National Assembly's Candidates are
elected by majority vote in single-member electoral districts for five-year terms through a
two-round voting system. The senate's members are elected for nine-year terms by an
electoral college. One-third of the Senate is elected every three years.6
On the other hand, in Germany, the legislature is divided into the Bundestag and the
Bundesrat. The Bundestag's members are chosen by the Council of Elders, but the presiding
officer is chosen leadership of the majority party and the elections held every four years. Its
members are around 670. One of the main functions of the Bundestag is to asses and
contributes to amending the government's legislative program. Other legislative functions of
the Bundestag's functions are selecting the federal chancellor and exercising oversight of the
executive branch. Most of legislative activity occurs in this house. The Bundesrat's 69
members are appointed by the launder (federal) government which is not popularly elected
and they vote as a bloc. That gives Germany a powerful protection against any federal
encroachment and that makes The Bundesrat one of the most important upper houses
anywhere in the world.7 The legislative authority of the Bundesrat is subordinate to that of
the Bundestag. The Bundesrat's role is to approve all legislations initiatives by the
government and pass them to the Bundestag. No legislative proposals can be presented to the
Bunderstag without an approval from the Bundesrat. The National Assembly in France is
equivalent to the Bundestag in Germany. However, the Bundestag poses more legislative
authority than the National Assembly whom which legislative authority was greatly restricted
in the Fifth Republic.
On the other hand, the Senate in France is equivalent to the Bundesrat in Germany. But, the
latter is very powerful in terms of legislative decision making unlike the Senate which got
significant role in legislative process restricted to certain issues such as Agriculture. When
comparing the power of the legal system in France and Germany, it is obvious that the
executive in France has got more power than the legislature as per the amendments in the
constitution in the Fifth Republic. Though the legislature in France has the right to fire the
executive, it's authority is very restricted and its contribution is limited to a particular extent.

6
Government, The Legislature. (n.d.). Retrieved from
http://www.countriesquest.com/europe/france/government/the_legislature.html
7
Magstadt, Thomas M. Understanding Politics: Ideas, Institutions, and Issues.
The President of France has the authority to dissolve the Parliament and issue orders to form
a new one. The formation of fifth republic worked to increase the presidential powers so as to
reduce interference in the functioning of the executive. The Fifth republic is termed as a semi
presidential system. It allows fusion of powers between the executive and the legislature.

On the other hand, there is a sort of balance between the executive and legislature in the
German political system. The job of the Bundestag is to choose its leader; once this is
accomplished, it is expected that the Bundestag will permit itself to be led by the
government. Since the head of the executive is chosen by the legislature, this creates a
balance between the two political branches.

France and Germany have different approaches and levels of legislative authority, hence two
different types of democracy. The French political system combines both characteristics of
Majoritarian and Consensual democracies.8 In France, the executive is more powerful than
the legislature; and this is a characteristic of a majoritarian democracy. However, as
mentioned above, the French legislature is made up of two chambers; the National Assembly
and the Senate. This is a main characteristic of consensual democracy.
On the other hand, Germany has a clear form of consensual democracy. Unlike France, there
is a balance between executive and legislature and this is a characteristic of consensual
democracy. Another characteristic of consensual democracy is the parliament is divided into
two chambers (Bundestag and Bundesrat). Finally, a key characteristic that gives Germany
the feature of consensual government is existence of a Federal structure of government.
France is one of the perfect instances in how legislature creates stability. Though the Fifth
Republic of France weakened legislature power, however the legislature in the constitution
enacted strong legislation that has reflected on the country's stability.
On the other side, the legislature in Germany worked on uniting both West and East
Germany and reduces the conflict between them leading to the nation stability and
strengthening its powers.

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French and German Political Systems. Retrieved from http://www.businesscustomwriting.com/our-
samples-/553-french-and-germanpolitical-systems.pdf
The Judiciary in France are also divided into two parts - the judicial courts (those dealing
with criminal and civil laws), and the administrative courts. Public law is applied in the
administrative courts . The highest of the judiciary courts is the Supreme Court of
Appeals. There are 36 courts of appeals, 161 tribunaux de grande instance , and
307tribunaux d'instance . At the top of the administrative courts rests the Council of State ,
with 8 courts of appeal and 42 tribunaux administratifs.9  

There is a third unique aspect of the judiciary in France - the Constitutional Council. This
branch oversees review of statutes before they are enacted as well as overseeing national
elections and answering questions from citizens regarding the constitutionality of laws.
The Constitutional Council is made up of nine members. Three are appointed by the
president, three by the head of the National Assembly, and three by the head of the Senate.

On the other hand, the judicial system of Germany comprises three types of courts. Ordinary
courts, dealing with criminal and most civil cases, are the most numerous by far. Specialized
courts hear cases related to administrative, labor, social, fiscal, and patent law. Constitutional
courts focus on judicial review and constitutional interpretation. The Federal Constitutional
Court is the highest court and has played a vital role through its interpretative rulings on the
Basic Law.

The ordinary courts are organized in four tiers, each of increasing importance. At the lowest
level are several hundred local courts, which hear cases involving minor criminal offenses or
small civil suits. These courts also carry out routine legal functions, such as probate. Some
local courts are staffed by two or more professional judges, but most have only one judge,
who is assisted by lay judges in criminal cases. Above the local courts are more than 100
regional courts, which are divided into two sections, one for major civil cases and the other
for criminal cases.10 The two sections consist of panels of judges who specialize in particular
types of cases. Regional courts function as courts of appeals for decisions from the local
courts and hold original jurisdiction in most major civil and criminal matters. At the next
level, Land appellate courts primarily review points of law raised in appeals from the lower
9
Available at https://guides.ll.georgetown.edu/c.php?g=362135&p=2446075#:~:text=The%20courts%20in
%20France%20are,Appeals%20(Cour%20de%20cassation)
10
Available at http://countrystudies.us/germany/155.htm
courts. (For cases originating in local courts, this is the level of final appeal.) Appellate
courts also hold original jurisdiction in cases of treason and anti-constitutional activity.
Similar to the regional courts, appellate courts are divided into panels of judges, arranged
according to legal specialization. Crowning the system of ordinary courts is the Federal Court
of Just in Karlsruhe. It represents the final court of appeals for all cases originating in the
regional and appellate courts and holds no original jurisdiction.

Specialized courts deal with five distinct subject areas: administrative, labor, social, fiscal,
and patent law. Like the ordinary courts, they are organized hierarchically with
the Land court systems under a federal appeals court. Administrative courts consist of local
administrative courts, higher administrative courts, and the Federal Administrative Court. In
these courts, individuals can seek compensation from the government for any harm caused by
incorrect administrative actions by officials. For instance, many lawsuits have been brought
in administrative courts by citizens against the government concerning the location and
safety standards of nuclear power plants. Labor courts also function on three levels and
address disputes over collective bargaining agreements and working conditions. Social
courts, organized at three levels, adjudicate cases relating to the system of social insurance,
which includes unemployment compensation, workers' compensation, and social security
payments. Finance, or fiscal, courts hear only tax-related cases and exist on two levels.
Finally, a single Federal Patents Court in Munich adjudicates disputes relating to industrial
property rights.

Conclusion

In the above writing we have compared the legal system of both the countries and as we
know that both France and Germany are two of the most powerful nations in Europe and the
world. So we have compared the legal system in detail. We have even compared the features
of the constitution and the parliamentary system. On comparing we came with the conclusion
that there are some similarities in the legal system of both the countries like both France and
Germany have bicameral legislature branches and there are also a lot of differences in the
legal system like France and Germany have different approaches and levels of legislative
authority. But both these countries have a strong legal system and is helpful for them to
govern their countries in a better way.