Francophones will recognise that I’m playing on language differences here. Un crime in French describes only a felony punishable by at least 10 years in prison. Everything else is called une infraction.
So my comment in the title is just a joke, like rendering French speech in English by ending every sentence with ‘but no?’, or English in French by beginning every sentence with ‘Je dis!’. No serious divergences implied. Or are they?
Courtesy of the Channel Tunnel, the drive home from chez nous only takes about seven hours. Add to that three hours for lunch along the way, and Penelope and I have plenty of time to discuss the differences between us and our French friends.
Inevitably gossiping about individual idiosyncrasies turns into generalised comments about the dissimilarity between the two nations, which we usually agree runs deeper than Europhiles think.
Such an exercise in comparative ethnography can be triggered by something as trivial as the French serving cheese before pudding, and the British the other way around. Or, as it was yesterday, it can be prompted by the differences in our laws. (Experience suggests that such topics are best covered before the stop for lunch: it’s not so much drinking as drinking and philosophising that makes driving dangerous.)
The legal topic came up because the other night we had dinner with a couple of dear French friends both of whom are high-flying lawyers. As friends, we have much in common; as British and French we also have differences, which the husband pointed out after his fourth glass of wine and my fifth.
French courts, he explained, are interested in establishing the truth, while the Brits are only out to observe casuistic legalities. Thus a French judge instructs jurors to look deep into their hearts to decide on the verdict. A British judge merely instructs them to determine whether the evidence presented by the prosecution proves the case beyond a reasonable doubt, and never mind their hearts.
You mean yours is a court of justice and ours is a court of law, I suggested, and my friend agreed readily. If only it were as simple as that, and looking into the details of the two systems will only scratch the surface.
The French system isn’t adversarial like ours, but inquisitorial. Collecting evidence in a French Court of Assizes (the one trying les crimes – no other court uses the jury system) is done not by prosecution and defence but by investigating magistrates, children of the Napoleonic Code. After the evidence has been presented in court by the troika of the presiding judge and two associates, the former then tells the jury to look deep into their hearts and act on their conscience.
The jury of nine includes three professional judges, there to explain to their randomly selected colleagues how to translate conscience into justice. (‘Yes I know, Jean-Pierre, he’s vraiment nasty, but this doesn’t legally make him a murderer, n’est ce pas?)
Contrary to the widespread misconception, a French defendant isn’t considered guilty until proven innocent, and even the notion of proof beyond reasonable doubt isn’t alien to their system.
Presumption of guilt did exist in the bad old days, mainly for the benefit of Victor Hugo who otherwise would have been unable to come up with a plot for Les Misérables. But these days the classical justice of Roman jurisprudence has crowded out some of the revolutionary afflatus communicated in the 1789 Declaration of Rights. How well presumption of innocence is served by the French inquisitorial system is a different matter, and not one I’m really qualified to judge.
My interests lie elsewhere: the ethos behind our respective legal systems. Clearly neither one is, nor can be, perfect: we aren’t blessed with ideal collective systems in this world, so we should still try to be good individually.
The French system perhaps places more stress on punishing the guilty and ours on protecting the innocent, and this is more than a matter of accents. Preference of protecting society rather than the individual points at the innate collectivism of the French, implanted into their DNA by the Enlightenment. Hence also their tendency towards statism, both national and supranational, as embodied by the EU. In law too the revolutionary pathos of the Declaration hasn’t been entirely superseded by Roman impartiality.
Interestingly, though all our French friends dislike the Revolution, few of them see anything fundamentally wrong with the Enlightenment of which 1789 was the culmination. The essence of the Enlightenment was humanism, elevating man to a God-like status, which was later constitutionally enshrined by France’s perverse laïcité.
England is these days as secular as France is, but our revolutionaries have so far been unable to destroy every Judaeo-Christian premise of British institutions, though not for any lack of trying. The chief premise is that man is fallible because he is fallen.
Hence our Common Law relies not so much on the jurors’ hearts as on legal minutiae emerging through centuries of precedent. Human reason alone is deemed unreliable unless bolstered by institutionalised prudence: only God is perfect, contrary to what the Déclaration des droits de l’homme implies. The Age of Reason is indeed the age of treason – to every formative tenet of our civilisation. The philosophy based on this understanding is conservatism, which doesn’t really exist in France, even though the word was coined by a Frenchman.
I agree with my friend: the French system is cleverer than ours. He, on the other hand, probably won’t agree with me that ours is wiser. Vive la différence, I say.