We can define bail as “a security such as cash, bond or property; especially, security required by a court for the release of a criminal defendant who must appear in court at a future time.” Also heard in the context of recognizance that is defined as “a bond or obligation, made in court, by which a person promises to perform some act or observe some condition, such as to appear when called […]. Most commonly, a recognizance takes the form of a bail bond that guarantees an unjailed criminal defendant’s return for a court date.” According to these definitions taken from the Black’s law dictionary, the bail or recognizance can be aptly described as “contracts made with the crown in its judicial capacity”.
The possibility of concluding a contract with the state especially at the moment in which it is exercising its most significant powers such as determining the guilt of a defendant is far away from the traditional concept of justice and state sovereignty in continental law, especially in France where the conquest of political power by the crown in the “ancien regime” was achieved through the ability to render justice. Even nowadays, the intrusion of “contractual justice” in French criminal law exists (i.e. the plea bargaining was transposed in French law through the “comparution sur reconnaissance prélable de culpabilité”) it is still questionable. For this reason, the institution of bail and recognizance do not exist in these countries and the translation may be rendered difficult.
Another legal and cultural aspect is the difference between the adversarial and inquisitorial criminal procedure. In the latter one, which applies in France, the importance placed on ascertaining the truth leads judges to extend the pre-trial detention. For this reason, alternatives to the detention appears only at the end of the 20th century in France with the “contrôle judiciaire” which permits to the examining magistrate to force the criminal defendant to respect a series of provisions in which we can find the obligation to pay a “cautionnement”.
As the word “cautionnement” in French law means paying a certain sum of money to guarantee the obligation of someone else, there is similarities with the institution of bail in the common law countries and thus, this translation is acceptable even though the legal context as we have seen is different.