Law and the Teacher in England and France

Abstract

IN RECENT YEARS much has been written of the social, political and economic status of teachers in western society. Conversely, little attention has been given to the study of the legal personality of teachers across national lines, which suggests that the subject deserves the consideration of students of comparative education. To that end, this article examines the legal status of teachers in France and England as shaped and defined by their respective law systems. For purposes of definition, the legal status of teachers represents the sum of their rights, duties, privileges and immunities, all of which have evolved from a variety of legal sources, both written and unwritten. Broadly speaking, two great law traditions are at work in the western world: codified law and common law. France and French-speaking lands, and to a lesser extent her Continental neighbours, may be classified as codified law nations; while England and most English-speaking states qualify as common law countries. Codified law nations emphasize the written law as expressed in codes, constitutions and statutes, the bulk of which originates from legislative authorities. Common law nations pay respect to the unwritten law as reflected in the customs and traditions of society, much of which is formally recorded in case law as created by judicial authorities. Viewed philosophically, the English law tradition displays a Baconian and Lockian spirit: Baconian because legal realities are arrived at inductively and Lockian because it combines the elements of empiricism and evolution. Not having a written constitution or code of law like France, her legal development has been inspired more by unwritten than by written sources. The essence of common law is that it represents a set of customs and traditions that has won favour and acceptance over a span of time. The codified law tradition of France, on the other hand, is revolutionary in outlook and Cartesian in spirit. Whereas English law is deeply attached to history, French law represents, at least in design, a fresh start in law building, unspoiled by custom and usage. The establishment of the Napoleonic Code during the first decade of the nineteenth century and the reality of five Republics, each with its own constitution, testify to the French tendency of constructing new legal and political structures, without formal reference to the past. In Cartesian terms codified law is a body of written principles from which specific rules of action may be derived. An interesting point is that English empiricism and French rationalism are values underlying education as well as law. The Cartesian love of good order and rational design are reflected in France's pyramidal educational structure and in her recent commitment to undertake educational planning on a grand scale. Moreover, the revolutionary pattern of creating institutions anew without regard to history is as true for French education as it is for French law. For example, the grande ecole and the lycee are, respectively, products of the Revolution and the Napoleonic era. Still another example of the pervasive