The subject of evidence is in fashion in France and probably elsewhere. I counted two important and international colloquia in France on the topic of evidence in 2013. It is a new topic in France. Traditionally, there were no textbooks, no papers and obviously no lectures on the topic. Evidence is basically taught during the first year of law school in a broad, introductory course on law. Depending on the course professor, the topic of evidence may or may not be covered; if it is, there are only three to nine hours dedicated to the topic.

Since the end of the nineteenth century there has been only one casebook written on evidence. Obviously, evidence is studied in the context of procedural law – whether criminal, administrative or civil – but again this is in a wider context only, and covers the procedural aspects of evidence.

The renewal of evidence as a topic of interest may be explained by several factors: the ‘proceduralization’ of law, the influence of the common law and the difficulty of proving discrimination and harassment claims. This trend is accompanied by the development of the loyalty principle and its counterpart, the right to proof. This contribution will first present the general picture of evidence law in France, then the emergence of the loyalty principle and lastly the limitations of this principle imposed by the right to proof.

General Picture of Evidence Law in France

The rules of evidence in French law are very different from the rules in common law countries even though some parallels can be drawn. In English, the two words ‘evidence’ and ‘proof’ are equivalent to the French term ‘preuve’, which comes from ‘épreuve’, or ordeal. Thus, in French law proof is not what we can see and hear (through testimony, for example) as the etymology of evidence would imply; rather, it is what the plaintiff and the defendant experience. This explains why proof by confession is still the basis – often repressed – of French criminal law.

Expertise (by this I mean the use of specialized knowledge provided by experts in particular fields) is now the most important means of proof in civil law, as it is in criminal law.