General Principles of French Civil Law

Author: Gaisdan
Publisher:
Publish Date: 2004-05-01
Features: The development of comparative law is a condition for the success of the globalization of law. This success in globalization means that it respects the differences in national systems while also striving to bring these systems closer together around common principles. In other words, to avoid a unipolar globalization and achieve a stable multipolarization, a new goal of pluralism rather than hegemony, comparative law is indispensable. It is reasonable to hope that this series will further inspire comparative studies between Chinese and French law. China and France have a long-standing tradition of mutual exchange and a sincere desire for mutual understanding. As early as 1964, France established diplomatic relations with China, and exchanges between the two countries have become increasingly close. The joint declaration signed by President Jiang Zemin and President Jacques Chirac in 1997 declared a new phase in the establishment of a comprehensive partnership between the two countries in the 21st century, particularly in the field of legal cooperation. This exchange has involved a wide range of areas, from cooperation between the National School of Administration (ENA) and the Chinese National School of Public Administration to the training of judges (the French National School of Magistrates and the Chinese Judicial College), and the exchange of lawyers (the Paris Bar Association and the All-China Federation of Lawyers). At the same time, high-level meetings between the highest courts of France and China, as well as exchanges between the Paris Commercial Court and the Beijing Higher People's Court, are continuously organized. According to the typical argument of the French civil law scholar Jean Carbonnier half a century ago—similarly discussed in the opening of this book—civil law, in a sense, is also an introduction to private law and legal theory! Because "the traditional mission of civil law is to provide an example for other branches of law," it aligns with people's impression of the essence of law: two parties, equal in status and balanced in power; technically, civil law was the first to perfect its conceptual system, and other branches of law have borrowed principles from civil law to varying degrees; civil law is the most advanced and most perfect branch of law (Droit civil, Introduction, Thémis, 1955, p. 15). In fact, what gives civil law its generality is not only its specific institutions, principles, and spirit (such as the theory of abuse of rights, the theory of autonomy of will, the theory of sanctity of private rights, and the theory of liability to oneself), but also its methodology, which is generally considered to have philosophical universality. The three major parts of this book—the distinction theory between objective law and subjective rights, the theory of legal sources, and the theory of the implementation of rights—all have the universal value of an introductory text to general law. Among the French legal system, the distinction between objective law and subjective rights holds a methodological universality: it is widely regarded as a distinctive foundational logical structure in French legal theory, and other content can be to this basic system. According to this fundamental theoretical framework, objective law is considered the entirety of all legal norms, while subjective rights are the collection of all "privileges (prérogatives)" enjoyed by subjects. However, these two are not entirely unrelated; on the contrary, they have an inseparable logical connection: objective law defines the scope of subjective rights and guarantees their implementation, while subjective rights embody the purpose of objective law and ultimately achieve its goals. Thus, objective law and subjective rights are seen as "the two faces of the same mirror (les deux faces d’un même miroir: le droit)." After making this basic distinction between objective law and subjective rights, other content can essentially be encompassed by this basic theoretical distinction: the second part of this book on legal sources actually discusses the sources of objective law; the third part on the implementation of rights is clearly the implementation of subjective rights: in fact, many introductory texts to French law in France are divided into only these two parts. It is evident that this dualistic methodology is deeply influenced by Cartesianism (Cartésianisme): Descartes' dualistic philosophy holds that there is an absolute difference between the physical world and the spiritual world. The former is considered an entity with "extension," i.e., matter, while the latter is a thinking entity. In fact, this dualistic philosophy has deeply influenced all humanities in France. Therefore, the process of reading this book is also a process of studying French legal epistemology and methodology. Target Audience: In the original French version of this book, the authors disclosed their intention to meet the different needs of readers at various levels, including law students, legal researchers, and legal practitioners. One of the features of this book is that it starts from legal provisions, provides detailed explanations of relevant cases, and gives considerable space to theoretical debates. The thoroughness of the theoretical discussions is a distinct style of the book. When discussing issues, the authors extensively reference the views of historical and contemporary scholars, summarizing and commenting on them; a substantial amount of legal history and comparative law analysis will enable readers to better understand the provisions of positive law, the theoretical basis and debates of cases, or the debates surrounding certain theoretical issues. Another feature of this book is its rich annotations and references, which provide theoretical researchers with easy access to other research findings on the same topic. Through reading this book, readers can see the academic norms that French legal scholars have followed for centuries in their legal research and writing; perhaps this book can serve as a reference example for the improvement of Chinese legal research, which has long been called for and is currently taking shape in Chinese academia. A third feature of this book is its considerable discussion of legal philosophy analysis (such as natural law and legal positivism), French civil law interpretation (such as the famous "School of Interpretive Jurisprudence" represented by Aubry and Rau and the "School of Scientific Free Inquiry" represented by Geny), and the introduction of some cutting-edge methodologies, such as legal sociology, legal economics, legal epistemology, legal logic, analytical jurisprudence, and legal informatics.