French Judges Research Articles

Ancien Regime Jurisprudence Shaped by a Primordial Jewish-Christian Polemic

Abstract In the eighteenth century, Jewish-Christian polemics fueled a legal dualism among French officials, Jewish communities, and Christian Hebraists. Out of this friction emerged the Recueil des Loix, Coutumes, et Usages Observes par les Juifs de Metz, which illuminated Jewish laws for French judges unschooled in Hebrew and the regional Judeo-Allemande dialect. Metz officials’ request for the Recueil cheered Jewish leaders who hoped to enhance Christian interest in the community’s internal life, even as skeptical Metz Jews likely suspected intensified surveillance of their transactions both among themselves and with Christians. Still, in interpreting Jewish law, ancien regime courts did not uniformly promote antisemitism. On the contrary, as seen in the compilation of the Recueil, judges often explored Jewish law with genuine curiosity and sought to reconcile it with Christian ideals, even if some judges clung to a hope of converting Jews, for which purpose Jewish law needed to be understood.

L’obligation de soins, ce que le thérapeute doit savoir : regards croisés entre justice et psychiatrie

IntroductionMandatory care is part of court-ordered care. This measure was introduced into French Law on November 23, 1958, at the same time as conditional imprisonment with probation. Rarely used by judges in the beginning, mandatory care appears to be ordered more frequently today. Concerning mainly male individuals with personality or substance abuse disorders, therapists will frequently be asked by their patients to implement this measure. Through a review of the legal and health literature, this paper intends to specify how mandatory care is ordered, implemented, applied and ultimately how it ends. MethodsWe conducted a literature review of French legal and health publications between 1958 and 2021. We included sources from several databases such as Science Direct, Persée, Cairn, Dalloz, and Légifrance. We used the keywords “obligation de soin”, “soins pénalement ordonnés”. DiscussionMandatory care is a frequent measure that can be pronounced by French judges at any judicial procedure. No psychiatric expertise is needed contrary to other court-ordered care such as injunction of care. As the magistrate only sets the goals of mandatory care, its organization and extent are determined by the therapist in partnership with the patient. The patient will then have to prove his assiduity to the judge, by asking the therapist to submit certificates of attendance. As the therapist is sworn to respect the professional secrecy towards the magistrate, the judge should transmit all the documents useful for the patient's care. Finally, mandatory care can be terminated at the behest of the patient, the district attorney, or the Executive Magistrate. ConclusionIt seems essential that healthcare professionals understand what mandatory care is and how it is conducted. Moreover, we invite all those involved, from the judicial to the medical system, to promote meeting venues to better identify the limits of each, while, at the same time, respecting one another's professional secrecy.

Tracking the wines of the Judgment of Paris over time: The case of Stag's Leap Wine Cellars’ Cabernet Sauvignon

AbstractThe outcome of the famous 1976 Judgment of Paris, a blind wine tasting of ten wines by nine French judges, brought American wines to the forefront of the wine business. A Californian wine, the 1973 Stag's Leap Wine Cellars S.L.V. Cabernet Sauvignon, was declared the winner, surpassing four highly prized French wines (Château Mouton-Rothschild 1970, Château Montrose 1970, Château Haut-Brion 1970, and Château Léoville Las Cases 1971). We collect ratings from experts for (almost) all vintages of the same ten wines over the years 1968–2021 and find that the Stag's Leap Cabernet Sauvignon is far from being first. We conclude that either the 1973 vintage was overrated by the experts who tasted it in 1976, or 1973 was merely an outlier in this winery.

Historical Gaps and Non-existent Sources: The Case of the Chaudrie Court in French India

AbstractThis article develops a typology of historical and archival gaps—physical, historiographical, and epistemological—to consider how non-existent sources are central to understanding colonial law and governance. It does so by examining the institutional and archival history of a court known as the Chaudrie in the French colony of Pondichéry in India in the eighteenth century, and integrating problems that are specific to the study of legal history—questions pertaining to jurisdiction, codification, evidence, and sovereignty—with issues all historians face regarding power and the making of archives. Under French rule, Pondichéry was home to multiple judicial institutions, administered by officials of the French East Indies Company. These included the Chaudrie court, which existed at least from 1700 to 1827 as a forum where French judges were meant to dispense justice according to local Tamil modes of dispute resolution. However, records of this court prior to 1766 have not survived. By drawing on both contemporaneous mentions of the Chaudrie and later accounts of its workings, this study centers missing or phantom sources, severed from the body of the archive by political, judicial, and bureaucratic decisions. It argues that the Chaudrie was a court where jurisdiction was decoupled from sovereignty, and this was the reason it did not generate a state-managed and preserved archive of court records for itself until the 1760s. The Chaudrie’s early history makes visible a relationship between law and its archive that is paralleled by approaches to colonial governance in early modern French Empire.

French law on CSR due diligence paradox

Purpose The purpose of this paper is to analyze the functioning of the French Law No 2017-399 relating to the duty of vigilance of parent companies and ordering companies, a law defended by labor unions and non-governmental organizations (NGOs) as an answer to the ineffectiveness of corporate social responsibility (CSR) mechanisms of multi-national corporation. Design/methodology/approach The authors try to determine to what extent the new mechanisms brought by this law could improve or not the failure of existing CSR mechanisms. Findings The authors find out that internal weaknesses of the law, which is based on voluntary CSR instruments and without penalties, internal mechanisms of the French judicial system or external economic factors, might considerably limit the effectiveness of the law. Originality/value Even if for the first time, French judges might be asked to evaluate the reasonableness of the CSR practices of firms, one of the paradoxical effects of this law might be to institutionalize soft law mechanisms such as CSR certification or reporting, the proponents of this law precisely wanted to get rid of at the origin.

Pushing the Appeal Against Fraud Before the Administrative Judiciary: A Comparative Study

The purpose of this study is to determine the jurisdiction to hear counterfeiting appeals if raised before administrative courts in Jordan, By comparing the position of the administrative judiciary in Jordan with that of the French and Egyptian administrative judiciary, Indicate whether the jurisdiction of the court in question is discretionary or restricted. The statement of the legal nature of this appeal and the position of jurisprudence and administrative judiciary on this nature.The results of the study showed that both the French and Egyptian administrative courts have admitted to themselves the power to consider the case of filing an appeal against forgery before the administrative courts, considering that the challenge of forgery is a sub-payment of the original judge. This was confirmed by the French State Council and the Egyptian State Council through the rulings of their administrative courts. One of the most important recommendations of the study was that the Jordanian administrative judiciary, especially after the issuance of the current administrative judiciary law, which came in response to the constitutional amendments scheduled in 2011, following the conduct of the French and Egyptian administrative judges, considering the impeachment of fraud by the original judge as a subsidiary payment to the original judge. Keywords: Forgery, administrative jurisdiction, legal nature. DOI : 10.7176/JLPG/93-10 Publication date: January 31 st 2020

Visibility of Acculturation in Legal Translation: Some Remarks about Cadi Ibn Acem ‘s Book Translated into French

After French colonialism monopolized Algeria, the French administration faced the problem of establishment judicial institution like courts. Otherwise, there is a great difference between civil law system and Islamic law adopted in Algeria before colonialism. The French administration order their judges to use Islamic law in judging Algerian citizens named « Indigene », by contrast French judges didn’t master both Arabic langue and Islamic law. This is the main reason of appearing legal acculturation by translating into French main books of religious jurisprudence like Mokhtasir Sidi Khalil who explained Imam Malek doctrine .This book was very difficult to understand, as a result two French lawyers decided to translate into French « Tohfa el Hokam » a book written by Cadi Ibn Acen, he was from Andalusia. It’s a judicial book wrote in poetry form addressed to Muslims Cadis and it contained practical steps to rule. This translation made a partial acculturation to French judges and it was a legal and linguistic introduction to Islamic law. In this paper, we are going to give some remarks about French translation of Ibn Acem book containing legal notions originated from Islam religion , and will pay attention for importance of acculturation in legal translation

Constitutional Preview and Review of International Treaties: France And Indonesia Compared

The Indonesian Supreme Court and the Indonesian Constitutional Court are experienced in examining international treaties, although the Indonesian constitution and national laws do not stipulate this matter explicitly. The Constitutional Council of France has the authority to examine judicial previews of bills concerning international treaties. Moreover, French judges can examine international treaties. There is also the European Court of Human Rights, which has an important role concerning the control of conventionality. This article aims to promote discussion about the examination of international treaty cases in Indonesia. It begins by considering the international scholarly literature on integrating international treaties and the rank of international treaties in the national legal system. Then, this article discusses the possibility of the Indonesian Constitutional Court to examine judicial preview of international treaty bills and judicial reviews concerning ratified international treaties.

French and Islamic Sources of Moroccan Administrative Law Study of an Antinomic Duality

Being placed at the heart of concrete questions and interrogations of practice, it is undeniable that the judge has often had the initiative. For its part, the doctrine certainly does not aspire to be a source of law, no more ultimately than jurisprudence, but it can be a look, a broadcaster and an echo of this jurisprudence. Dean Vedel emphasizes in this context that the judge pilots, but the doctrine guides otherwise dictates the route, as he sees the general direction of the course. In a series of decisions, the Moroccan judge expressed the will to adapt the jurisdictional protection of the citizen to the religious data of the country. Moreover the principles of Islam are one of the originalities of Moroccan public law. Nevertheless, he finds in the case-law of the French administrative judge, in particular that of the state Council, a reassuring environment which offers him ready-made, orderly solutions which give his decisions the power of consecrated authority. Confronted practically with the same problems posed by the species that are submitted to him, the Moroccan administrative judge seeks from the French judges, who had in their solutions taken a few steps ahead, examples and models. However, the principle of French inspiration does not mean that jurisprudential solutions are transposed as is. The Moroccan judge has the tendency to become independent of the French judge by basing himself on a realism dominated by prudence and progressivity and on national characteristics that have no equivalent in France.

La perception par des magistrats français de l’introduction de données neuroscientifiques dans les expertises psychiatriques pénales : effets sur l’évaluation de l’expertise et la situation pénale de la personne expertisée

ObjectiveTo analyze whether the judge's perception of the quality, and scientific basis of a psychiatric expert report of a criminal defendant can vary according to whether or not this evaluation includes neuroscientific data (a written description of a structural neuroimaging MRI scan) and their effects on the decisions made by judges. Experimental psychology has demonstrated a number of cognitive effects arising from exposure to neuroscientific explanations and/or neuroimaging data and which may bias judgments and lead to (mis)interpretations that can affect decisions. This research suggests that including neuroscience evidence in an expert report may impact they way the report is assessed by non-specialists, such as judges, whose work requires them to take into account such reports. MethodWe conducted a study on 41 French judges in order to determine whether their perceptions of the expert report (objectivity, reliability, scientific basis, quality, relevance, credibility, and persuasiveness) and their assessment of risk of recidivism, link between the disorder and offense and the influence of expert report on their decision-making, vary according to whether or not the evaluation includes neuroscientific data. The magistrates had to read a clinical case, summarizing an expertise, with or without neuroscientific data, and then answer various closed (criteria were evaluated using 7-point Likert-scales) and open-ended questions (asking respondents to indicate the reasons underlying their Likert-scale responses). Half of the magistrates received report containing neuroscientific data and the other half a similar report, without this type of data. Quantitative analyses were carried out to assess the effect of the sample's characteristics on the responses given and to compare the results between the two conditions (correlation analyses and Student T). Qualitative analyses, terminological and thematic, were also carried out. ResultsQuantitative and qualitative results show that the presence of neuroscience data in an expert report affects judges’ perceptions of the report and the magistrates’ perceptions of the link between disorder and offense. The judges considered the expert report including neuroscientific data to be more relevant, more objective, better quality, and more reliable than the report without such data. Furthermore, they found the expert's arguments to be more persuasive and that these arguments had a greater scientific basis when the report included neuroscientific data than when such data was absent. Moreover, this phenomenon was stronger in more experienced magistrates than in less experienced magistrates. The qualitative finding shows a greater ability to recognize shortcomings in expert reports when they do not contain neuroscience data. The Expert reports including neuroscience data are perceived as more scientific and objective. ConclusionThe presence of neuroscience data in an expert report affects judges’ perceptions of that report. These effects may be related to cognitive biases described in the literature, in particular the perceived scientific nature of neuroscience data. If judges are aware of their limits when it comes to assessing technical data, they appear relatively unaware that scientific data can induce cognitive biases and thereby affect their perceptions of expert reports.

Judges’ perceptions of expert reports: The effect of neuroscience evidence

This article explores the impact of neuroscience evidence on how expert reports are perceived and their effects on the decisions made by trial judges. Experimental psychology has demonstrated a number of cognitive effects arising from exposure to neuroimaging data which may bias judgments and lead to (mis)interpretations that can affect decisions.We conducted a study on a sample of 62 Swiss and French judges in order to determine whether their perceptions of the credibility, quality and scientific basis of a psychiatric evaluation of a criminal defendant vary according to whether or not the evaluation includes neuroscientific data. Quantitative analyses were conducted in order to evaluate significant differences between the two conditions (one-way analyses of variance) and moderation and conditional analyses to examine whether the participants' sex and length of professional experience moderated the effect of the conditions. Terminological and thematic analyses were carried out on open questions.Quantitative and qualitative results suggest that the presence of neuroscience data in an expert report affects judges' perceptions of the quality, credibility, and scientificity (reliability, objectivity, scientific basis) of the report, and the persuasiveness of the evidence it provided. Moreover, this phenomenon was stronger in more experienced judges than in less experienced judges.

Loi, nationalité et mariages mixtes entre Français et autochtones : Le cas de l’arrêt du Conseil supérieur de la Louisiane du 18 décembre 1728

Abstract Did Native people have the same rights as French people in the colonies during the seventeenth and eighteenth centuries? They did, according to a law enacted in all the colonies. Indeed, once converted, aboriginal people could go and live in France, get married to French people, and inherit their wealth. However, the implementation of this law, which was specific to the French colonies, posed some problems. Marriages between French settlers and aboriginal women constituted a non-negligible loss of income for the colony. The law allowed an aboriginal widow to inherit the goods and wealth of her deceased husband. In these cases, the French judges, among other members of Louisiana’s Conseil superieur, were faced with the dilemma of either upholding the missionary vocation of the French colonies of the seventeenth and eighteenth centuries-a vocation used to justify the colonization of the New World-or preventing the loss of part of the colony’s wealth.

Are Judges Street-Level Bureaucrats? Evidence from French and Canadian Family Courts

Although judges were included in the street-level-bureaucracy (SLB) group by Lipsky (1980), sociolegal scholars have barely used this theoretical framework to study them. This article aims to specify their position with respect to SLB in order to bridge the gap between public administration and sociolegal research. Specifically, using a cross-national ethnography of judicial institutions, it compares family trial judges' practice on the ground in France and Canada. General conditions separate them from the core SLB group: encounters with clients are less direct; discretion is more legitimate. However, French judges are far closer to the SLB group than their Canadian counterparts regarding public encounters and case processing. As such, the accuracy of the SLB framework depends on professional and cultural patterns that combine differently in these two national contexts.

D’un droit défensif à un droit coopératif : la nécessaire réforme de notre justice pénale des affaires

L’année 2014 a été marquée par deux affaires dans lesquelles de grandes entreprises françaises ont eu à verser des sommes conséquentes au ministère américain de la Justice (DOJ) au titre d’amendes transactionnelles. Les deux grandes entreprises françaises ont peut-être payé pour leurs fautes mais aussi ‒ voire surtout ‒ pour leur mauvaise compréhension d’une nouvelle règle du jeu du « business mondial ». Ces deux affaires illustrent l’apparition d’un nouveau paradigme en droit des affaires, largement inspiré par la culture du droit américain, qu’il est urgent de saisir pour adapter notre droit. Cet enjeu est devenu crucial pour la protection de nos entreprises à l’heure du droit global. Il l’est d’autant plus que le nouveau modèle en construction est en perpétuelle mutation et qu’il est nécessaire de s’adapter rapidement. À cette fin, il convient de détailler les enseignements de ces affaires, non seulement en vue de transformer notre système de justice mais, plus profondément encore, notre culture, et de la mettre ainsi au diapason de notre temps.

God, the Pencil, and the Judge: Exploring the Paradoxes Regarding Protection of Freedom of Religion and Expression in France

The clash between religious freedom and freedom of expression has created social turbulence, political discord, and marginalisation of religious minorities, the latter of which is seen by many as having security implications. The author explores the possibility of a framework that reconciles freedom of religion and freedom of expression within a very unique French context. Recent events show that the issue continues to be unresolved; courts are frequently seized by those who argue that their beliefs were harmed and seek reparation, and proponents of free (and sometimes hostile) expression are fighting back. The author will discuss methods used by French judges to determine offense to religious sentiment—sometimes in very tricky and arbitrary ways—as broadly defined as violations of beliefs, symbols and religious rites, and will seek common ground with generally accepted norms of free expression that can exist within a framework of public order that respects all citizens.

Urban Kanak Parents on Customary Trial: An Ethnography of the Customary Family Court of Nouméa, New Caledonia

AbstractFor the last two decades, in the context of the progressive decolonization of New Caledonia (South‐West Pacific), the French justice system has integrated Kanak within New Caledonia's family courts. These customary assessors are officially responsible for identifying and explaining the relevant “customary law” to the presiding professional judges (all of whom come from metropolitan France), required to adjudicate Kanak family matters (divorce, child custody, child support, and so on) according to “Custom.” Drawing on an ethnographic study of the Customary Family Court of New Caledonia's capital city, Nouméa, this paper concentrates on the practical interactions between these legal guardians of the customary order and the urban, mostly young, Kanak parents appearing before the Court. As day‐to‐day experiences of Kanak parenthood in this urban context often challenge the traditional, functionalist, and ruralist paradigm promoted by the Customary Family Court, ethnographic observation of these hearings reveals a wide range of discursive strategies and cultural negotiations and confrontations between Kanak parents, customary assessors, and French judges. At the core of these debates on family, culture, and custom in the justice system lies the issue of Kanak authenticity and its articulation with history, social change, and urban trajectories. [custom, justice, decolonization, parenthood, New Caledonia]

Does Patent Quality Drive Damages in Patent Lawsuits? Lessons from the French Judicial System

Abstract This paper presents an empirical analysis of the link between patent damage awards and patent quality, based on information from suits filed during the period 2008–2013 in France. Our results show that civil damage awards attributed by French judges are significantly linked to patent quality, as assessed from a statistical point of view, but this link is imperfect.

Age and disability differential treatment in France – Contrasting EU and national court’s approaches to the inner limits of anti-discrimination law

Illegitimate differential treatment in France puts European Union anti-discrimination law into perspective. Although French judges and the French legislature have transposed the directives on legitimate differences of treatment based on age and disability which include justifications to discrimination in employment, the French judiciary has also shown it can adopt a higher standard of scrutiny than the Court of Justice of the European Union, taking into account the specific plight of younger and older workers. This development is meaningful because this implicitly highlights how civil law systems can grasp, in a more incisive way, the scope of antidiscrimination law.

Affaire Vincent L. : les maux de la fin

As called back it June 24th, Council of State in its press release, the Vincent L.’s case “raise scientific, ethical and human questions”. At first, to decide on the fate of this 38-year-old man, the administrative jurisdiction recovered from it in expert opinions asked to establish the existence or not of an unreasonable stubbornness. But the objectivity of the medical science cannot solve only this litigation where the outcome is the life or the death of a patient. That is why the court opened its doors to the ethical speech too. If in this case, the science could not exist without consciousness, if the legal word could not exist without the ethical word, it's because of the human dimension which fills this media and legal affair. So behind this patient's case, called now “the Vincent L.’s affair”, it's a question about the death, that of a young man in the incapacity to express its will. It's also a question of a family disagreement on the future of their son, brother, or husband. In this context, “politically and mediatically charged”, the administrative jurisdiction pronounced four times on the decision of the stop of Vincent L.’s treatment. The educational position of the French judges allowed to clear up statutory provisions of the Leonetti's act.

Rue d’Ulm : Comparative Judicial Stylistics

What is the poethic method of reading law ? It claims that the form of a judicial opinion is indistinguishable from its substance. The structure, syntax, and word choice of the judge are not mere ornament ; they in fact comprise the decision. You cannot extract the judge’s manner of writing from the rule, or holding, of the decision, or if you do it is only at your peril. As Benjamin N Cardozo put it in his seminal 1925 essay called “Law and Literature”: Form is not something added to substance as a mere protuberant adornment. The two are fused into a unity. [Cardozo, Collected Writings, 340] Thus for the common law judge, there is no specific form that must be used in rendering a judgment. The choice of form, and of the words that are used, derives – inductively – from the specific situation with which the judge is faced. Everything works from the unique set of facts upwards to the relevant rules of law that controls it, and the judge’s narration of the facts usually points to one or more precedents that then dictate the outcome of the case at hand. The facts lead to the operative precedent and then back down to the facts themselves, now definitively resolved. Cardozo himself admired French law and mentions both the Code Napoleon and the work of French judges often in his essays. [Cardozo] However, would Cardozo have believed that his European colleagues, including the judge in France, shared the creative potential of her Anglophone colleague ? In an essay that had already e