Jurisdictional dualism in France

Jurisdictional dualism in France is the separation of the French court system into two separate divisions, or "ordres", as they are called in French: the ordinary courts (ordre judiciaire), and the administrative courts ^[fr] (ordre administratif).^[1] The ordinary courts, also known as the judiciary order, handle criminal and civil cases, while the administrative courts handle disputes between individuals and the government. This dual system allows for a clear separation of powers and specialized handling of cases related to the actions of the government. The administrative courts are headed by the Council of State, and the ordinary courts by the Court of Cassation for judiciary law.^[1]

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The separation of public law (administrative)^[2] and private law (judiciary) goes back to Roman law. A separate branch for public law existed during the Ancien régime. Many other countries have such a system (including in common-law countries) not only in having a separate judicial order for administrative courts (which exist also in Germany, for example, with Article 95 of the Basic Law of Germany). However, France is exceptional in this regard because of the position of the administrative judge in being superior to the administration, and because administrative law is largely unwritten, and established mostly by administrative judicial jurisprudence. That is, administrative law derives largely from case law written by administrative judges, and not by laws passed by the legislature.

In the case of the judiciary order, codes are established by the legislature and open to all,^[a] but as administrative law is result of jursprudence and uncodified, it is not discussed in Parliament, not published in the Journal Officiel, and hidden from the public.^[3]

When there is a potential conflict of jurisdiction between courts of the administrative order and courts of the judiciary order, this is handled by the Tribunal des conflits.^[4]

Courts of the judiciary order (French: ordre judiciaire), known as "ordinary courts", have jurisdiction for two branches: settling civil cases between private individuals, as well as cases of criminal law.

The branch that deals with disputes between private individuals is the civil courts. Civil courts settle disputes (for example, rent, divorce, inheritance) but do not impose penalties. The criminal courts constitute the branch that handles criminal offenses, and punish offenses against people, property and society.^[1][5][6]

The administrative courts (French: ordre administratif) in France are one of the two main branches of the French dual court system, the other being the judiciary order. It handles cases between individuals and the government at any level. Courts of the administrative order have jurisdiction when a "public person" (not a human, but a personne publique) is involved, for example, a municipality or a government department. Courts of the administrative order are organized in three levels: The Council of State, the administrative courts of appeal in the second instance, and the administrative courtsin the first instance; these courts ensure a balance between the prerogatives of public power and the rights of citizens.^[1][6]

Specifically excluded from administrative law are civil cases between private individuals, as well as cases of criminal law; these are both handled by the § ordinary courts.

The dual system of law comprises private law (droit privé), also known as judicial law, and public law (droit public).^[7][1] This distinction dates back to Roman law.^[8]

Roman law

Further information: Roman law § Substance, ius publicum, and ius privatum

Latin Wikisource has original text related to this article:

Digest, Book I

Roman law was codified, and in the south of France the Jus gentium continued to be used, although mostly only in the case of public and administrative law, and private law was left to the localities to determine.^[9] The distinction between private law and public law goes back to Ulpian, a Roman jurist of the third century,^[8] who wrote: "Public law is what regards the welfare of the Roman state, private law what regards the interests of individual persons; because some things are of public, others of private utility."^[10][b]