French Legal Theory

The School of Exegesis

The École de l’exégèse dominated French legal thought throughout the nineteenth century, reflecting the confidence in codified law that followed the Napoleonic codification. The exegetical school treated the Code civil as a complete and coherent legal text requiring only careful interpretation through grammatical, logical, and historical methods. Leading exegetes such as Charles Aubry and Charles-Frédéric Rau, Charles Demolombe, and Raymond-Théodore Troplong approached the code as a self-sufficient source of law, maintaining that the judge’s function was limited to applying the will of the legislator expressed in the code. The exegetical method was characterised by its textual literalism, its respect for legislative intent, and its systematic organisation of legal doctrine according to the code’s own structure. The school’s lasting contribution was to establish the Code civil as the foundation of French legal culture, but its excessive formalism attracted increasing criticism as legal practice confronted problems the code’s drafters had not anticipated.

Free Scientific Research and Sociological Jurisprudence

François Gény led the reaction against the exegetical school with his method of libre recherche scientifique (free scientific research). In his Science et technique en droit privé positif (1914–1924), Gény distinguished between the “given” law (le donné) — the positive legal materials found in legislation and custom — and the “constructed” law (le construit) — the legal rules that jurists develop to fill gaps and address new circumstances. Gény argued that where legislation is silent, judges must engage in free scientific research, drawing on social reality, prevailing moral standards, and the nature of things rather than engaging in the exegetes’ artificial attempts to extract answers from the code’s text.

Léon Duguit developed a sociological jurisprudence grounded in the theory of social solidarity. For Duguit, law is not an expression of state sovereignty but a product of social interdependence. His theory of droit objectif (objective law) held that legal rules derive their binding force from their necessity for maintaining social solidarity, and that the state itself is bound by this objective law. Duguit’s work profoundly influenced French public law, providing a foundation for the modern understanding of the service public (public service) as the organising principle of French administrative law.

Institutional Theory and Kelsen’s Influence

Maurice Hauriou developed the institutional theory of law (théorie de l’institution), later refined by Georges Renard. Hauriou argued that legal institutions — corporations, associations, the state itself — are not mere aggregates of individual relationships but organised social groups that develop their own internal law. The institutional theory offered an alternative to both the individualism of contractual theories and the statism of state-centred theories, emphasising the normative autonomy of social groups and the idea of the institution as a “going concern” with its own constitutional structure.

Hans Kelsen’s pure theory of law exerted significant influence on French public law, particularly through the work of Charles Eisenmann, who introduced Kelsen’s thought to France. The hierarchical structure of legal norms became a foundational concept of French constitutional theory, especially after the establishment of the Constitutional Council (Conseil constitutionnel) and the development of constitutional review. The 1958 Constitution’s establishment of a hierarchy of norms, with the Constitution at the apex, reflected Kelsen’s model and transformed French public law.

Contemporary French Legal Theory

Structuralism influenced French legal thought through the work of scholars who applied structuralist methods to the analysis of legal systems and concepts. The critical legal studies movement in France took distinctive forms, including the work of the Critique du droit school and the law and literature movement, which explored the rhetorical and narrative dimensions of legal discourse. In contract law theory, the work of Jean Carbonnier, Jacques Flour, and Jean-Louis Aubert developed sophisticated theoretical frameworks for understanding the French law of obligations, balancing doctrinal analysis with sociological insight and comparative perspectives. Carbonnier’s Droit civil exemplified the French tradition of doctrine — the scholarly commentary that, while not formally a source of law, exercises decisive influence on judicial interpretation and legislative reform.