L’AHJUCAF est une association qui comprend cinquante cours judiciaires suprêmes francophones.
Elle a pour objectif de renforcer la coopération entre institutions judiciaires, notamment par des actions de formation et des missions d’expertise.
Premier président honoraire de la Cour de cassation française, membre du Conseil constitutionnel
If we accept that the statement of reasons contains the entire rationale that forms the basis of a court’s decision, we realise that the technique of setting out those reasons is different, depending on whether we are looking at common law or civil law courts. In one there is a brief statement of reasons, in the other a very detailed one. Aside from these differences in form, we realise that this divergence in the technique of setting out the reasons for a decision corresponds with the different functions or the different powers of the common law and civil law courts.
Common law judges have the power to create the law or rule. They will choose the area in which they wish to create a precedent, be it a socially controversial matter or a major social problem. From this precedent, they will create a new rule, either by revising, or by adding to an old precedent. Consequently, it is the judges who create the law. Since they create the law, they must give reasons for doing so. To put it another way, as they will decide a matter, not only on legal grounds, but also on issues of fact and the social values practised and commonly accepted by society, they will have to justify their decision to the social arena they are addressing.
This is why common law judges give lengthy statements of reasons. It is also the reason why, instead of having a completely collective decision, there is a comparison of individual decisions from which a majority will be determined. Therefore the majority decision will be that of the judge who presents a complete statement of reasons on behalf of the court, while the minority set out their position in the dissenting opinions.
For the civil law court, the problem is not the same. It does not create the law; it interprets the law. The court does this according to purely legal processes which consequently result in a brief statement of reasons.
Why is the civil law court not permitted to give long statements of reasons in its judgments, but is instead restricted to short statements? In what ways is this unsatisfactory? What can be done to alleviate this paucity of reasoning? Why does the Civil Law court, and in particular the French Court of Cassation, give brief statements of reasons?
The first reason has to do with the actual method of setting aside a decision on a point of law, known as “cassation”. What is the French method of cassation? The parties will put a number of questions, called grounds of appeal, to the court in a very formal manner, according to very precise rules, and the court responds only to those questions. To put it another way, a cassation judgment is a collection of responses to purely legal grounds of appeal drawn from a decision given by a court of first instance or a court of appeal, known as the juge du fond.
The Court of Cassation does not recount the facts of the case. The cassation decision is not a narrative, nor does it provide a global statement of reasons in response to the litigation. Instead it is a series of logical replies to legal questions put to the court. The second reason concerns the separation of powers.
The French court - the civil law court - does not create the law; it interprets the law. Consequently, the interpreter will give it either a grammatical or a more detached meaning through more complex reasoning, a contrario. In any case, the court is subordinate to the law. When interpreting the law, the court does not have to give the reasoning of the legislature; it can not substitute itself as the legislature in order to explain the meaning of the law in either a critical or approbative manner. Since the law is the expression of the general will, the court cannot add to, transform or justify the general will. That is why, when the court interprets the law, it reveals its meaning by purely and simply repeating the law.
Those are the two reasons why the Court of Cassation is restricted to a short statement of reasons. Now the question is: is this satisfactory?
First of all, the Court does not justify the law, nor does it even justify the reasons behind the method of interpreting the law. In other words, if the Court relies upon a contrario or purely syntactic reasoning, it will not say why. Instead, the Court will give the meaning of the law such as it understands it, without saying what its method of interpretation is. It appears that that is where the strongest criticism from a certain number of commentators over a very long period of time has come from, in particular internal criticism from Principal Counsel for the State at the Court of Cassation, Adolphe Touffait, and from a professor of law, André Tunc. Both drafted an article entitled “Pour une motivation plus explicite des arrêts de la Cour de cassation”, in which they called for more detailed statements of reasons in the decisions of the Court of Cassation. They explain that this absence of reasoning from the courts of cassation means that the courts’ influence is undermined because, in their opinion, the reasoning of the Court needs to be made known. It is because the Court does not present its reasoning that, in the words of these commentators, “the Courts of Cassation are losing influence”, as they cannot convey the conviction of their decisions to the public.
This current of dissent actually comes from those who are used to supranational jurisdictions, which is the case with Adolphe Touffait, who was a judge at the Court of Justice of the European Communities before becoming Principal Counsel for the State at the Court of Cassation, and André Tunc, who was a great comparatist of the French system with the Anglo-American system.
It is clear that this criticism of the short statement of reasons has come from that comparison.
If it is necessary to change the short statement of reasons, what are the grounds for doing so? First of all, nothing prevents the court, even in our civil law system where it does not create the law, from giving reasons why it interprets the law differently. From the point of view of legal certainty, the absence of a detailed statement of reasons becomes most questionable. Thus the Court of Cassation, which for a century has interpreted Article 1384 of the French Civil Code in a certain way, one day decides to interpret it differently. Is it logical then that, in completely changing the interpretation of the law, the Court does not give its reasons for doing so? In terms of legal certainty this is what has become unacceptable. If the court changes the application of the law, it is up to the court to say why it has done so and what determining factors pushed it towards this change. In this case, these reasons are generally known: the interpretation of the Article has become an obsolete, inconsistent part of the legal system, and it is now essential that the Article be interpreted differently.
The first force for change is from the perspective of legal certainty, which should lead to the court providing reasoned decisions for itself and to the court itself reflecting on the reasons for changing its interpretation. The second reason why the court will depart from its existing interpretation is the emergence of supranational laws. When the law of the European Convention on Human Rights, for example, is applied and there are conflicting principles between national and Convention law, the Court may put aside the application of national law. It will then be obliged to say why it has done so, in keeping with the principles of proportionality, subsidiarity, and effectiveness. It will be obliged to explain why it has supplanted national law so that supranational law holds primacy.
If the court is taken to task over the requirement to provide more detailed reasons, how will it set about keeping its own technique, the technique of cassation, whilst providing reasons both to the public, who have requested this, and to lawyers and judges?
There are two ways of doing this. First of all, it should make public all of what we call the Court of Cassation’s pre-judgment documentation. This morning Principal Counsel for the Crown, Jean Dujardin, said that a decision of the Court of Cassation is preceded by a certain number of written submissions, the first being the opinion of the Principal State Counsel, followed then by the Reporting Judge’s report. It can be seen that, if the opinion of the Principal State Counsel and the report of the Reporting Judge are published alongside the decisions, we already have a collection of reasons which led the court to reach its decision. To put it another way, the grounds of the decision are not expressed clearly, but the issues around which the Court gave its ruling are. The second way of setting about this concerns the reports produced by the Court of Cassation, and it involves publishing each year the Court’s leading cases and furnishing these decisions with a commentary that places them in the context of an evolving case law. This provides a retrospective view, that is, it explains how the Court arrived at this point, and a prospective view, which makes it possible to ascertain where the Court is going and why. By drawing from these leading developments in case law, we can justify this creation of legal precedents by the Court of Cassation.
These two methods may be questionable. As for the first, it concerns opening up to the public the pre-decision documentation, and with the second, it allows the court to add to its decision by providing its own commentary.
This morning we said that the Court of Cassation had its own legal doctrine and we were surprised that this was the case. If the Court comments on its own decision, it expresses more than the actual decision; it gives the reasons for its decision as part of a continuing legal doctrine. It appears to me that this is what makes it possible to retain this precious technique of cassation – a technique that underpins the legal culture of civil law systems – as part of the methods of interpreting the law and reviewing the legality of the decisions of the lower courts. At the same time it satisfies this tendency, expressed quite strongly by the opinions of jurists, towards the courts being required to convey the reasoning in their decisions more clearly.