Comparative Public Administration

• SUBJECT CODE : 18MPA25E • PREPARED BY : DR.P.MAGUDAPATHY Asst. Professor • DEPARTMENT : PG & Research Department Of Public Administration • CONTACT NO. : 9994672379 • E-MAIL : [email protected]

The content is prepared according to the text book and reference book given in the syllabus.

Year Subject Title Sem. Sub Code

2018 -19 Elective II:Comparative Public Administration II 18MPA25E

Onwards

Objective To increase the knowledge of the students about the Comparative Public Administrationand Administrative System which are prevailing in the various parts of the world namely U.S.A., U.K., France.

UNIT I: INTRODUCTION Meaning, Nature and Scope of Comparative Public Administration - Evolution of the Study of Comparative Public Administration – Approaches to the Study of Comparative Public Administration – Traditional- Structural-Behavioral – Functional – System , Institutional, Ecological and Modern Approach.

UNIT II: COMPARISON OF LAW AND POLICY MAKING PROCESS Comparative Study of Legislature and Policy Making Process in UK, USA and France

UNIT III: FUNCTION OF EXECUTIVE BRANCHES Comparative Study of Executive Branches in UK, USA and France

UNIT IV: METHODS OF JUDICIAL SYSTEM: Comparative Study of Judicial System in UK, USA and France

UNIT V: TYPES OF CIVIL SERVICE AND LOCAL GOVERNMENTS: Comparative Study of Civil Services in UK,USA and France, Comparative Study of Local Government Institutions in UK, USA and France.

Textbook 1. Arora R.K. Comparative Public Administration. Unique Publishers, New Delhi , 2007

Reference Books 1. S.S Pahlya, Ravindra Singh, New Delhi , Sterling Publishers Pvt,Ltd, New Delhi,2012 2. RathodP.B . Comparative Public Administration, Abd Publishers Jaipur -2007 3. Juditha Bara And Mark Pennigton Comparative Politics, Sage Publication New Delhi, 2009. 4. Chatorvedi . T.N. Comparative Public Administration Associated Publishing House, New Delhi 2002.

UNIT IV

METHODS OF JUDICIAL SYSTEM

• United Kingdom

The Doctrine of Judicial Review was prevalent in England. Dr. Bonham Case125 was decided in 1610 by Lord Coke was the foundation of judicial review in England. But in the case of City of London v. Wood126 Chief Justice Holt remarked that “An Act of Parliament can do no wrong, though it may do several things that look pretty odd.” This remark establishes the

‘Doctrine of Parliamentary Sovereignty’ which means that the court has no power to determine the legality of Parliamentary enactments. In U.K. there is a system which is based on Legislative

Supremacy and Parliamentary Sovereignty. Earlier, there was no scope of judicial review in

U.K., but after the formation of European Convention of Human Rights, the scope of judicial review became wider. The enactment of Human Rights Act, 1998 also requires domestic Courts to protect the rights of individuals. In U.K., there is no written Constitution and Parliamentary

Supremacy is the foundation. Principle of “Parliamentary Sovereignty” dominates the constitutional democracy in U.K. The two dimensions of legislation in U.K., are; I. Primary legislation, which are basically legislations enacted by Parliament. Primary legislation is outside the purview of judicial review except in few cases which encroaches the law of European

Community law. After the formation of European Union and Human Rights Act 1998, Primary legislation is subject to judicial review in some cases. II. Secondary legislation, which provides rules, regulation, directives and act of Ministries. Secondary legislation is subject to judicial review. There is no exception to secondary legislation, all the executive and administrative functions, rules, regulations can be reviewed by Courts and any of the actions can be declared as unlawful which is ultra vires to the Constitution. In Les Verts v. European Parliament, 127 it was held that the “European Union is a community based on the Rule of law, inasmuch as neither its member states nor its institutions can.

Current Position of Judicial Review in U.K

In U.K., present scenario is much deviated to the judicial review. The Courts in U.K. strictly followed the principles of judicial review with regard to administrative actions and secondary legislations. So far as primary legislations are concerned, they are outside the purview of judicial review but with some exceptional cases. Judicial review of administrative actions which are executive in nature are mostly subject matter in the present scenario in U.K. In, R. (on the application of Drammeh) v. Secretary of State for the Home Department,128 an immigration detainee who had failed to take his medication for schizo-affective disorder and had gone on hunger strike, but who did not lack mental capacity, failed to establish that his detention was unlawful by virtue of his pre-existing serious mental illness where the facts indicated that his actions were calculated to avoid deportation. The claimant applied for judicial review of the lawfulness of his immigration detention. It was held that there was no doubt that the effect of detention on a detainee's mental health was a very relevant factor in evaluating what constituted a "reasonable period" of detention. The secretary of state’s policy in Chapter 55.10 of the

Enforcement Instructions and Guidance in relation to the detention of the mentally ill imposed a duty to inquire into the relevant circumstances of a detainee to assess whether serious mental illness existed and whether it could be satisfactorily managed in detention. Further, it was held that, where a detainee had capacity, his refusal to consent to medical treatment put him outside the scope of the secretary of state’s policy statements. The United Kingdom has four legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English law, Scots law, Northern Ireland law,[1] and, since 2007, purely Welsh law (as a result of the passage of the Government of Wales Act 2006 by Parliament). However, unlike the other three, Welsh law is not a separate legal system per se, merely the primary and secondary legislation generated by the Welsh Parliament, interpreted in accordance with the doctrines of English law and not impacting upon English common law (except where such Welsh legislation ousts a common law rule by virtue of being a superior form of law). There is a substantial overlap between these three legal systems and the three legal of the

United Kingdom: England and Wales, Scotland, and Northern Ireland. Each legal system defaults to its , each of whose courts further that law through jurisprudence. Choice of which jurisdiction's law to use is possible in private law: for example a company in Edinburgh,

Scotland and a company in Belfast, Northern Ireland are free to contract in English law. This is not so in public law (for example, criminal law), where there are set rules of procedure in each jurisdiction. Overarching these systems is the law of the United Kingdom, also known as United

Kingdom law (often abbreviated UK law).

UK law arises from laws applying to the United Kingdom and/or its citizens as a whole, most obviously constitutional law, but also other areas, for instance tax law. The United Kingdom does not have a single legal system because it was created by the political union of previously independent countries. Article 19 of the Treaty of Union, put into effect by the Acts of Union in

1707, created the Kingdom of Great Britain but guaranteed the continued existence of Scotland's and England's separate legal systems.[2] The Acts of Union of 1800, which joined Great Britain and Ireland into the United Kingdom of Great Britain and Ireland, contained no equivalent provisions but preserved the principle of different courts to be held in Ireland, of which the part called Northern Ireland continues to follow as part of the United Kingdom. The Supreme Court of the United Kingdom is the highest court in the land for all criminal and civil cases in England and Wales and Northern Ireland, and for all civil cases in Scots law.[3] The Supreme Court is also the final court (in the normal sense of the term) for interpreting United Kingdom law. Note, however, that, unlike in some other systems (for example, the United States), the Supreme Court cannot strike down statutes and its precedents can be expressly overridden by Parliament, by virtue of the doctrine of Parliamentary sovereignty. The Supreme Court came into being in

October 2009, replacing the Appellate Committee of the House of Lords.[4][5] In England and

Wales, the court system is headed by the Senior Courts of England and Wales, consisting of the

Court of Appeal, the High Court of Justice (for civil cases) and the Crown Court (for criminal cases). The Courts of Northern Ireland follow the same pattern. In Scotland the chief courts are the Court of Session, for civil cases, and the High Court of Justiciary, for criminal cases. Sheriff courts, as they deal with both criminal and civil caseloads, have no equivalent outside Scotland.

Certain tribunals for administrative law cases have UK-wide jurisdiction, notably those dealing with immigration—the Upper Tribunal (Immigration and Asylum Chamber) and Special

Immigration Appeals Commission—military and national security, competition and intellectual property, and a few others. Similarly, the Employment Appeal Tribunal has jurisdiction throughout Great Britain but not in Northern Ireland.In fulfilment of its former EU treaty obligations, European Union law was actively transposed into the UK legal systems under the

UK parliament's law-making power—acts of the European Union Parliament not having direct effect in the dualist UK. Upon Brexit, EU law was transplanted into domestic law as "retained

EU law", though during the transition period it is expected that the UK will remain in alignment with EU regulations.

Justices of the Supreme Court

The judges of the Supreme Court of the United Kingdom are known as Justices of the Supreme

Court, and they are also Privy Counsellors. Justices of the Supreme Court are granted the courtesy title Lord or Lady for life.

The Supreme Court is a relatively new Court being established in October 2009 following the Constitutional Reform Act 2005. Formerly, the Highest Court of Appeal in the

United Kingdom was the House of Lords Appellate Committee made up of Lords of Appeal in

Ordinary, also known as Law Lords, which with other Lord Justices now form the Supreme

Court. It also took over devolution cases from the Judicial Committee of the Privy Council.Such

Law Lords were allowed to sit in the House of Lords and were members for life.

The Supreme Court serves as the highest court of appeal for all cases in England and

Wales and in Northern Ireland, but only for civil cases in Scotland.The High Court of

Justiciary remains the court of last resort in Scotland for criminal cases.

The Supreme Court is headed by the President and Deputy President of the Supreme

Court and is composed of a further ten Justices of the Supreme Court.

The Justices do not wear any gowns or wigs in court, but on ceremonial occasions they wear black damask gowns with gold lace without a wig

In India, the Judiciary has been organised and its powers have been defined by the constitution of India. In the USA, the Judiciary stands organised under the provisions of the US constitution.

The United Kingdom does not have a single body of law applicable throughout the realm. Scotland has its own distinctive system and courts; in Northern Ireland, certain spheres of law differ in substance from those operating in England and Wales. A feature common to all UK legal systems, however—and one that distinguishes them from many continental systems—is the absence of a complete code, since legislation and unwritten or common law are all part of the

"constitution."

The main civil courts in England and Wales are 218 county courts for small cases and the High Court, which is divided into the chancery division, the family division, and the Queen's

Bench division (including the maritime and commercial courts), for the more important cases.

Appeals from the county courts may also be heard in the High Court, though the more important ones come before the Court of Appeal; a few appeals are heard before the House of Lords, which is the ultimate court of appeal for civil cases throughout the United Kingdom. In Scotland, civil cases are heard at the sheriff courts (corresponding roughly to the English county courts) and in the Outer House of the Court of Session, which is the supreme civil court in Scotland; appeals are heard by the Inner House of the Court of Session. Trial by jury in civil cases is common in

Scotland but rare in the rest of the United Kingdom.

Criminal courts in England and Wales include magistrates' courts, which try less serious offenses (some 96% of all criminal cases) and consist most often of three unpaid magistrates known as justices of the peace, and 78 centers of the Crown Court, presided over by a bench of justices or, in the most serious cases, by a High Court judge sitting alone. All contested cases receive a jury trial. Cases involving persons under 17 years of age are heard by justices of the peace in specially constituted juvenile courts. Appeals may be heard successively by the Crown Court, the High Court, the Court of Criminal Appeal, and in certain cases by the

House of Lords. In Scotland, minor criminal cases are tried without jury in the sheriff courts and district courts, and more serious cases with a jury in the sheriff courts. The supreme criminal court is the High Court of Justiciary, where cases are heard by a judge sitting with a jury; this is also the ultimate appeals court.

All criminal trials are held in open court. In England, Wales, and Northern Ireland,

12-citizen juries must unanimously decide the verdict unless, with no more than two jurors dissenting, the judge directs them to return a majority verdict. Scottish juries of 15 persons are permitted to reach a majority decision and, if warranted, a verdict of "not proven." Among temporary emergency measures passed with the aim of controlling terrorism in Northern Ireland are those empowering ministers to order the search, arrest, and detention of suspected terrorists and permitting juryless trials for terrorist acts in Northern Ireland.

Central responsibility for the administration of the judicial system lies with the lord chancellor (who heads the judiciary and also serves as a cabinet minister and as speaker of the House of Lords) and the home secretary (and the secretaries of state for Scotland and for

Northern Ireland). Judges are appointed by the crown, on the advice of the prime minister, lord chancellor, or the appropriate cabinet ministries. The United Kingdom accepts the compulsory jurisdiction of the International Court of Justice with reservations.

The judges of the Supreme Court of the United Kingdom are known as Justices of the Supreme

Court, and they are also Privy Counsellors. Justices of the Supreme Court are granted the courtesy title Lord or Lady for life.[1] The Supreme Court is a relatively new Court being established in October 2009 following the Constitutional Reform Act 2005. Formerly, the

Highest Court of Appeal in the United Kingdom was the House of Lords Appellate Committee made up of Lords of Appeal in Ordinary, also known as Law Lords, which with other Lord

Justices now form the Supreme Court. It also took over devolution cases from the Judicial

Committee of the Privy Council.[2][3] Such Law Lords were allowed to sit in the House of Lords and were members for life. The Supreme Court serves as the highest court of appeal for all cases in England and Wales and in Northern Ireland, but only for civil cases in Scotland.[4] The

High Court of Justiciary remains the court of last resort in Scotland for criminal cases. The

Supreme Court is headed by the President and Deputy President of the Supreme Court and is composed of a further ten Justices of the Supreme Court.[citation needed] The Court usually sits in the Middlesex Guildhall in Westminster, though can sit elsewhere and has, for example, sat in the Edinburgh City Chambers,[2] the Royal Courts of Justice in Belfast,[3] and the Tŷ Hywel

Building in Cardiff.[4] The United Kingdom has a doctrine of parliamentary sovereignty,[5] so the Supreme Court is much more limited in its powers of judicial review than the constitutional or supreme courts of some other countries. It cannot overturn any primary legislation made by

Parliament. However, it can overturn secondary legislation if, for an example, that legislation is found to be ultra vires to the powers in primary legislation allowing it to be made. Further, under section 4 of the Human Rights Act 1998, the Supreme Court, like some other courts in the

United Kingdom, may make a declaration of incompatibility, indicating that it believes that the legislation subject to the declaration is incompatible with one of the rights in the European

Convention on Human Rights. Such a declaration can apply to primary or secondary legislation.

The legislation is not overturned by the declaration, and neither Parliament nor the government is required to agree with any such declaration. However, if they do accept a declaration, ministers can exercise powers under section 10 of the Human Rights Act to amend the legislation by statutory instrument to remove the incompatibility or ask Parliament to amend the legislation.As authorised by the Constitutional Reform Act 2005, Part 3, Section 23(1),[6] the Supreme Court of the United Kingdom was formally established on 1 October 2009 and is a non-ministerial government department of the Government of the United Kingdom.[7] Section 23 of the Constitutional Reform Act limits the number of judges on the Court to 12, though it also allows for this rule to be amended, to further increase the number of judges, if a resolution is passed in both Houses of Parliament.[8] It assumed the judicial functions of the House of Lords, which had been exercised by the Lords of Appeal in Ordinary (commonly called "Law Lords"), the 12 judges appointed as members of the House of Lords to carry out its judicial business as the

Appellate Committee of the House of Lords. Its jurisdiction over devolution matters had previously been exercised by the Judicial Committee of the Privy Council. The current President of the Supreme Court is Lord Reed. The Justices do not wear any gowns or wigs in court, but on ceremonial occasions they wear black damask gowns with gold lace without a wig. The UK tribunal system is part of the national system of administrative justice with tribunals classed as non-departmental public bodies (NDPBs).[6] Though it has grown up on an ad hoc basis since the beginning of the twentieth century, from 2007 reforms were put in place to build a unified system with recognised judicial authority, routes of appeal and regulatory supervision, and recognised legally qualified members of tribunals as members of the judiciary who are guaranteed continued judicial independence.[7] The UK tribunal system is headed by the Senior

President of Tribunals

United States Judicial System

The United States Judicial system was created under Article III of the Constitution to ensure fair and impartial administration of justice. The judicial branch of the government works separately from the executive and legislative branches. Federal laws are passed by the legislative branch (congress), and signed by the President, who is head of the executive branch. The judicial branch decides whether or not those laws follow the Constitution and resolves disputes about federal laws. The executive branch is then required to enforce those decisions. The United States has a federal system of government, which means the states are united with a

central government, yet remain independent in certain internal affairs. This includes separate

federal and state court systems.

The Constitution is the supreme law of the land.

The Supreme Court is the highest court in the land. It has the responsibility of determining

whether a law is constitutional. It is also the last resort for those with legal disputes.

Underneath the Supreme Court, there are two types of courts, federal and state. Each of these

has different jurisdiction. Jurisdiction determines which court has the right to rule over a certain

dispute. Several factors are used when determining jurisdiction including the subject matter,

dollar amount, and where the parties live or work. The plaintiffs in a case are responsible for

showing which court has jurisdiction over the dispute in question.

Federal courts have jurisdiction over:

1. Indian reservations

2. Military bases

3. Maritime law

4. Diplomats (unless their country gives consent for state jurisdiction)

5. Question of federal law such as copyright or patent laws

6. Disputes between two or more states such as those involving borders or water rights 7. Bankruptcy cases

8. Interstate claims over $75,000.00 if either party involved requests the case be moved to federal

court.

The federal court system is divided into 94 district trial courts organized into 12 regional

circuits. A federal can be files in any one of the 94 district courts.

The President appoints the Circuit Judges with the consent of the Senate. Each circuit judge is

required to be a resident of the Circuit for which appointed at the time of his appointment and

thereafter while in active service. An exception to this rule is District of Columbia.

federal seats were vacant, with 85 of 856 positions unfilled and 4 vacancies on the

prestigious Court of Appeals for the District of Columbia Circuit.[2] The high vacancy rate has

been attributed to politics, particularly Senate filibustering of potential appointees by

Senators.[2] In many cases there is no nominee for the position; however, the Senate has a

tradition of senatorial courtesy in which nominees are only considered if the home senators

approve.[3] In May 2013 Congressional Research Service

COURTS

All federal courts can be readily identified by the words "United States" (abbreviated to

"U.S.") in their official names; no state court may include this designation as part of its name.[1] The federal courts are generally divided between trial courts which hear cases in the first instance, and appellate courts which review specific contested decisions made by lower courts.

The United States district courts (one in each of the 94 federal judicial districts, and three territorial courts) are general federal trial courts, although in certain cases Congress has diverted original jurisdiction to specialized courts, such as the Court of International Trade, the Foreign

Intelligence Surveillance Court, the Alien Terrorist Removal Court, or to Article I or Article IV tribunals. The district courts usually have jurisdiction to hear appeals from such tribunals (unless, for example, appeals are to the Court of Appeals for the Federal Circuit.)

The United States courts of appeals are the intermediate federal appellate courts. They operate under a system of mandatory review which means they must hear all appeals of right from the lower courts. In some cases, Congress has diverted appellate jurisdiction to specialized courts, such as the Foreign Intelligence Surveillance Court of Review. The federal courts of appeals sit permanently in 13 appellate circuits (11 regional circuits as well as a DC Circuit and the Federal

Circuit). Note that there are several other federal courts that bear the phrase "Court of Appeals" in their names, but they are not Article III courts and are not considered to sit in appellate circuits.

The Supreme Court of the United States is the court of last resort. It generally hears appeals from the courts of appeals (and sometimes state courts), operating under discretionary review, which means that the Supreme Court can choose which cases to hear, by granting writs of certiorari.

There is therefore generally no basic right of appeal that extends automatically all the way to the

Supreme Court. In a few situations (like between state governments or some cases between the federal government and a state) it sits as a court of original jurisdiction.

Besides these federal courts, described as Article III courts, there are other adjudicative bodies described as Article I or Article IV courts in reference to the article of the Constitution from which the court's authority stems.

There are a number of Article I courts with appellate jurisdiction over specific subject matter including the Court of Appeals for Veterans Claims and the Court of Appeals for the Armed

Forces, as well as Article I courts with appellate jurisdiction over specific geographic areas such as the District of Columbia Court of Appeals. The Article I courts with original jurisdiction over specific subject matter include the bankruptcy courts (for each district court), the immigration courts, the Court of Federal Claims, and the Tax Court.

Article IV courts include the High Court of American Samoa and territorial courts such as the District Court for the Northern Mariana Islands, District Court of Guam, and District Court of the Virgin Islands.

JUDGES

In April 2013, about 10 percent of published a paper analyzing the vacancies and appointment process.[4]

Under Article I of the federal Constitution, Congress also has the power to establish other tribunals, which are usually quite specialized, within the executive branch to assist the president in the execution of his or her powers. Judges who staff them normally serve terms of fixed duration, as do magistrate judges who assist Article III judges. Judges in Article I tribunals attached to executive branch agencies are referred to as administrative law judges (ALJs) and are generally considered to be part of the executive branch even though they exercise quasi-judicial powers. With limited exceptions, they cannot render final judgments in cases involving life, liberty, and private property rights, but may make preliminary rulings subject to review by an

Article III judge.

ADMINISTRATION

• The Judicial Conference of the United States is the policymaking body of the U.S. federal

courts. The conference is responsible for creating and revising federal procedural rules

pursuant to the Rules Enabling Act.

• The Administrative Office of the United States Courts is the primary support agency for the

U.S. federal courts. It is directly responsible to the Judicial Conference. The AO prepares the

judiciary's budget, provides and operates secure court facilities, and provides the clerical and

administrative staff essential to the efficient operation of the courts.

• The judicial councils are panels within each circuit charged with making "necessary and

appropriate orders for the effective and expeditious administration of justice".

• The Federal Judicial Center is the primary research and education agency for the U.S. federal

courts.

• The Judicial Panel on Multidistrict Litigation transfers and consolidates cases in multiple

judicial districts that share common factual issues.

• The United States Marshals Service is an Executive Branch agency that is responsible for

providing protection for the federal judiciary and transporting federal prisoners.

• The Supreme Court Police provide security for the Supreme Court building.

LEGAL PROCEDURE

The Supreme Court has interpreted the Constitution as placing some additional restrictions on the federal courts. For example, the doctrines of , , and prohibit district courts from issuing advisory opinions. Other doctrines, such as the and the Rooker-Feldman doctrine limit the power of lower federal courts to disturb rulings made by state courts. The requires federal courts to apply substantive state law to claims arising from state law (which may be heard in federal courts under supplemental or ). In difficult cases, the federal courts must either guess as to how a court of that state would decide the issue or, if that state accepts certified questions from federal courts when state law is unclear or uncertain, ask an appellate court of that state to decide the issue.

Notably, the only federal court that can issue proclamations of federal law that bind state courts is the Supreme Court itself. Decisions of the lower federal courts, whether on issues of federal law or state law (i.e., the question was not certified to a state court), are persuasive but not binding authority in the states in which those federal courts sit.[5]

Some commentators assert that another limitation upon federal courts is executive nonacquiescence in judicial decisions, where the executive simply refuses to accept them as binding precedent.[6][7] In the context of administration of U.S. internal revenue laws by the Internal Revenue Service, nonacquiescences (published in a series of documents called

Actions on Decisions) "generally do not affect the application of stare decisis or the rule of precedent". The IRS "will recognize these principles and generally concede issues accordingly during administrative proceedings." In rare cases, however, the IRS may continue to litigate a legal issue in a given circuit even where the IRS has already lost a case on that issue in that circuit.[8]

HISTORY

The Articles of Confederation provided a clear basis for the initial establishment of

United States of America judicial authority by Congress prior to the Constitution. This authority, enumerated by Article IX, allowed for the establishment of United States jurisdiction in the trial of piracies and felonies committed on the high seas, final appeals from state court decisions in all cases of captures of enemy ships, last resort for resolution of disputes between two or more states

(including disputes over borders and jurisdiction), and final determination of controversies between private parties arising from conflicting land grants issued by two or more states prior to settlement of which state actually has jurisdiction over the territory. The Court of Appeals in

Cases of Capture was the first United States Court established by the United States. Additional

United States courts were established to adjudicate border disputes between the states of Connecticut and Pennsylvania, New York and Massachusetts, Georgia and South Carolina.

Lastly, a United States court was established for the Northwest Territory.

When the Constitution came into force in 1789, Congress gained the authority to establish the federal judicial system as a whole. Only the Supreme Court was established by the

Constitution itself. The Judiciary Act of 1789 created the first inferior (i.e., lower) federal courts established pursuant to the Constitution and provided for the first Article III judges.

Virtually all U.S. law schools offer an elective course that focuses specifically on the powers and limitations of U.S. federal courts, with coverage of topics such as , abstention doctrines, the abrogation doctrine, and habeas corpus.

FRANCE JUDICIAL SYSTEM

In France, career judges are considered civil servants exercising one of the sovereign powers of the state, so French citizens are eligible for judgeship, but not citizens of the other EU countries.

France's independent court system enjoys special statutory protection from the executive branch.

Procedures for the appointment, promotion, and removal of judges vary depending on whether it is for the ordinary ("judiciaire") or administrative stream. Judicial appointments in the judicial stream must be approved by a special panel, the High Council of the Judiciary. Once appointed, career judges serve for life and cannot be removed without specific disciplinary proceedings conducted before the Council with due process.

The Ministry of Justice handles the administration of courts and the judiciary, including paying salaries or constructing new courthouses. The Ministry also funds and administers the prison system. Lastly, it receives and processes applications for presidential pardons and proposes legislation dealing with matters of civil or criminal justice. The Minister of Justice is also the head of public prosecution, though this is controversial since it is seen to represent a conflict of interest in cases such as political corruption against politicians.

At the basic level, the courts can be seen as organized into:[1]

● ordinary courts (ordre judiciaire), which handle criminal and civil litigation

● administrative courts (ordre administratif), which supervise the government and handle

complaints

The structure of the French judiciary is divided into three tiers:

● Inferior courts of original and general jurisdiction

● Intermediate appellate courts which hear cases on appeal from lower courts

● Courts of last resort which hear appeals from lower appellate courts on the interpretation

of law.

Procedural

While in Germanic Europe the supreme courts can and do tend to write more verbose opinions supported by legal reasoning, the typical Francophone court of cassation decision is short, concise and devoid of explanation or justification. There is no stare decisis, or principle of precedent, binding lower courts to respect superior courts' rulings (case law) on questions of law; but a line of similar case decisions, while not precedent per se, forms the jurisprudence constante.

Criminal

Public offenses are categorized as:

● crimes, serious felonies, which are heard by the Assize Court (cour d'assises) ● délits, less serious felonies and misdemeanors, which are heard by the Criminal Court

(tribunal correctionnel, also called the Correctional Court)

● contraventions, minor offenses and violations, which are heard by the Police Court

(tribunal de police, also called the Police Tribunal)

For petty misdemeanors like most traffic violations, suspected offenders may either plea nolo contendere and pay a set fine amount (amende forfaitaire) or contest the charge in court. The court may then find the defendant innocent or guilty, but if found guilty, they are liable to be sentenced a higher fine.

Organisations ;

At the basic level, the courts can be seen as organized into:

ordinary courts (ordre judiciaire), which handle criminal and civil litigation administrative courts (ordre administratif), which supervise the government and handle complaints

Ordinary

Minor jurisdiction

At the bottom of the court hierarchy are the courts of minor jurisdiction.[4] The Police Court

(tribunal de police, also called the Police Tribunal) hears contraventions, minor criminal offenses such as traffic violations, minor assaults, and breaches of the peace. The Civil Court (tribunal d'instance) hears minor civil cases.

Major jurisdiction

The next tier are the courts of major jurisdiction.[5] When the court hears délits, less serious felonies and misdemeanors, it is called a Criminal Court (tribunal correctionnel, also called a

Correctional Court).[6] When the court sits to hear civil matters, it is called a Civil Court

(tribunal de grande instance, also called a Grand Instance Court).[5] It has general jurisdiction for civil matters over 10 000 €. Litigants are statutorily required to be represented by a lawyer, or avocat. The court also sits as a Juvenile Court (tribunal pour enfants).

The courts are normally composed of 3 judges, but some offenses such as traffic offenses, soft drugs, and misuse of credit cards and checking accounts may be heard by 1 judge.

Specialized jurisdiction

The Labour Court (France) (conseil de prud'hommes) hears disputes and suits between employers and employees (apart from cases devoted to administrative courts); the court is said to be paritaire because it is composed of equal numbers of representatives from employer unions, e.g., MEDEF and CGPME, and employee unions. The Agricultural Land Tribunal (tribunal paritaire des baux ruraux) hears cases dealing with long-term leases for farm land estates. The

Social security tribunal (tribunal des affaires de sécurité sociale) hears suits over welfare and state benefits. The Business Court (tribunal de commerce) hears matters involving trade and business disputes and the panel is elected from the local business community.

Court of Assize

The Court of Assize (cour d'assises, also called a Court of Sessions) sits in each of the departments of France with original and appellate jurisdiction over crimes, or serious felonies.

As a court of first instance, it is normally composed of 3 judges and 9 jurors, but in some cases involving terrorism and the illegal drug trade the court may sit as 3 judges alone. When it sits as a court of appeal, it is composed of 3 judges.

Court of Appeal

The Court of Appeal (cour d'appel) handles appeals from most lower courts.[5] It is composed of

3 judges.[5] The Court is divided into a number of divisions or courts: social security, business, general civil, and criminal. Formerly, it required the intervention of a solicitor or case attorney

(avoué) to prepare and manage the case and to act as an intermediary between the barrister and the appellant or appellee; the functions of the avoué were abolished in 2012. Appeals may take anywhere from 18 to 24 months, if not longer.

Court of Cassation

The Court of Cassation (cour de cassation) is the highest level of appeal in France.[7] These courts sit in six chambers with fifteen judges in each; however, only seven judges need to be present to hear a case.[8][5] There are more than 120 judges serving in the court.[5]

The Court of Cassation hears appeals from the assize courts and the courts of appeal.[8] Criminal cases are heard in only one of the court's five chambers and the court has no legal authority to deny a criminal appeal.[8] The Court is referred to as the guardian of the law. It only reviews questions of law, not questions of fact. The Court’s essential purpose is to ensure that the interpretation of the law is uniform throughout the country.

The Court is located in the Hall of Justice building in Paris. It was established in 1790 under the name Tribunal de cassation during the French Revolution, and its original purpose was to act as a court of error with revisionary jurisdiction over lower provincial prerogative courts (Parlements).

However, much about the Court continues the earlier Paris Parliament Court.

Periodical Literature Want to find out if you can get electronic access to a journal article through the library? Check the Journal Finder. From the research page, it's listed under Frequently Used Databases on the right hand side of the page. The Journal Finder even tells you if a journal is available on Lexis and Westlaw. To use the Journal Finder, type in the name of the journal, and see what sources will give you full-text electronic access. If we don't have the journal electronically, check the library catalog for a print version or request the article through interlibrary loan.

Indexes & Periodicals Databases Periodical literature is a good way to obtain background information, locate the text of a law, a citation, or locate information about a subject. To obtain the best results, use periodical indexes to locate relevant citations.

Below are listed a few of the most commonly used journal indexes. See our journal indexes pagefor a complete list. If you are new to using indexes to find articles, have a look at these two guides:Locating Journal Articles: Foreign & International and Using Articles for Legal and Non- Legal Research.

Full text of articles are available in the databases listed below.

• Cambridge University Press Journals • Kluwer Law International Journals • Oxford University Press Journals • Academic Search Premier • JSTOR • Google Scholar • Selected French-Language Periodicals Current editions of these journals are located at the Wolff circulation desk. Older editions are on the 4th floor of the Wolff Library.

Revue française de droit constitutionnel INTL K21 .F73 Constitutional law periodical. Library has from 1990 to present. Les cahiers du Conseil constitutionnel INTL K3 .A145 Comparative constitutional law periodical with analysis of decisions from the constitutional counsel. Library has from 1997 to present. Revue trimestrielle de droit civil INTL K21 .T75 Civil law periodical. Library has from 1902 to present.

Citing to French Law Consult The Bluebook KF245 .U5 2010, Rule 20 (R20) and Table 2 (T.2) - France, Republic of - for assistance with citing to French law. Rule 20 provides the general guidelines for citing to foreign law and Table 2 provides details specific to French legal materials. The Bluebook provides guidance for citing to French cases, constitution, codes, statutes and decrees, legislative materials, and electronic sources.

Case Law Because France is a civil law country, case law is not as important as it is in the United States. France does not have a comprehensive reporter system similar to the federal and regional reporters of the U.S. The most important French courts are the Cour de cassation (the Federal Supreme Court), the Conseil d'Etat (Supreme Administrative Court), and the Conseil constitutionnel (Constitutional Court). Decisions from these courts are available in print and recently online. Most decisions will only be available in French. Researchers are likely to find decisions from the highest French courts; locating lower court decisions is often difficult to impossible.

Statutes In addition to the resources below, consult the Foreign Law Guide, an online database of foreign law primary sources. The entry for France includes legal-historical background materials, a list of the primary sources for statutes, regulations, case law and other sources of law, individual laws listed by subject heading, Internet sources for French legal resources, and a good selection of English-language translations. French statutes are not available on Lexis or Westlaw.

The codes are divided into parts: L.O. (organic laws) and L. (laws), that are regrouped in the legislative part; R. (decrees of the Conseil d'État) and D. (simple decrees), that are regrouped in the regulation part.