Why has the French Civil Code had a lasting influence on contemporary European law?

Revision as of 09:45, 15 March 2016 by IncantoX (Talk | contribs) (Created page with "The French Civil Code<ref>Commonly also referred to as Napoleonic code</ref> was enacted on March 21, 1804. The Code represents a comprehensive reformation and codification of...")

(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)

The French Civil Code[1] was enacted on March 21, 1804. The Code represents a comprehensive reformation and codification of the French civil law and was considered by Napoleon himself to be one of his most significant achievements. Nowadays it remains a strong legal, sociological and cultural landmark for the French nation. And in spite of some revisions that were introduced later, the Napoleonic code is still very applicable in the French Republic and Law today. The Code played a significant role mainly in the formation of the 19th century civil codes in most countries of continental Europe and Latin America. Today many European legal systems are established upon its basis and strong influence. The Civil Code has turned into a truly modern instrument successfully applied for over 200 years despite the vast social transformations in the French society. Its long-lasting effect is closely connected to the very history of its creation.

Origins of the Civil Code and forces behind codification

The main instigator for the promulgation of the Civil Code was Napoleon Bonaparte, the first Consul of France. However, the demand for codification and clarification itself precede the Napoleonic era. Diversity of laws was the dominant characteristic of the pre-revolutionary legal order. Roman law governed in the south of France, whereas in the northern provinces[2] a customary law had developed and dominated, based largely on feudal Frankish and Germanic institutions. Marriage and family were entirely under the control of the Roman Catholic Church and its cannon law. In addition, a wide range of matters were governed by royal decrees and ordinances as well as by case law. The society itself was used to legislative diversity and the king's authority appeared as the only factor of unity. In contrast to the French people the Revolution was not so tolerant of this co-existing diversity. Instead, it promoted the great principle of Equality between all citizens, according to which all laws should apply similarly to everyone across the French territory.[3] The idea of legal unification naturally transformed into legal codification: it became not only possible but almost necessary. The Napoleonic code, therefore, was founded on the premise that, for the first time in history, a purely rational law should be created, which justification was to be found in its conformity to the dictates of reason.

The first actual steps in the drafting of the Code were taken by a special commission, headed by Jean-Jacques-Regis and established by the National Convention in 1793. Within six weeks the commission prepared a draft code, lately rejected by the convention on the grounds that it was too technical and detailed to be easily understood by all citizens. In the following years more commissions were established but none of their draft codes were actually accepted. Finally, in 1801, the consulate, with Napoleon Bonaparte as first consul, resumed the legislative work and nominated a new commission.[4] A final draft in the form of 36 statutes was submitted between 1801 and 1803. On March 21 1804 those statutes were consolidated in a single body of law – the Code Civil des Francais. Due to political reasons its title was changed several times and in 1807 it became Code Napoléon. However, since 1870, statutes have referred to it simply as the “civil code”.

Contents of the Napoleonic Code

The creation process of the Civil Code was inspired by Justinian's sixth-century codification of Roman law, the Corpus Iuris Civilis. The Napoleonic Code, however, differed from Justinian's in important ways: it incorporated all kinds of earlier rules, not only legislation. It was a comprehensive rewrite with a more rational structure and no religious content. The development of the Napoleonic Code was a fundamental change in the nature of the civil law system, making laws clearer and more accessible. It also superseded the former conflict between the royal legislative power and the views of the judges, thus having no case law in France. However, the decisions made by some important courts have become more or less close equivalent to case law itself.

The principles incorporated in the Napoleonic Code were written in 3 main books containing more than 25 Titles and over 100 Chapters. Under the code all male citizens are equal; all class privileges are extinguished. Freedom of person, freedom of contract and inviolability of private property are fundamental principles.[5] The preliminary article of the Code established certain important provisions regarding the rule of law, that is - Laws could be applied only if they had been duly promulgated, and then only if they had been published officially. Thus, no secret laws were and could be authorized any longer. The Code also prohibited ex post facto laws (laws that apply to events that occurred before their own introduction). Furthermore, on one hand, judges were prohibited from refusing justice on the grounds of insufficiency of the law, thereby encouraging them to interpret the law. On the other hand, the Napoleonic Code also prohibited judges from passing general judgements of a legislative value.

The first book of the Code deals with the law of persons: the enjoyment of civil rights, the protection of personality, guardianship, relations of parents and children, marriage, personal relations of spouses, and the dissolution of marriage be annulment or divorce. The code subordinated women to their fathers and husbands, who controlled all family property, determined the fate of children and were favoured in divorce proceedings. The second book deals with the law of things: the regulation of property rights – ownership, usufruct and servitudes. The third book deals with the methods of acquiring rights: by succession, donation, marriage settlement and obligations. In the last chapters, the code regulates a number of nominate contracts, legal and conventional mortgages, limitations of actions and prescriptions of rights.

The Code’s spread across the world

During the 19th century the Code was voluntary adopted in a number of European and Latin American countries, either in the form of simple translation or with considerable modifications. It was adopted in many countries occupied by the French during the Napoleonic Wars, and thus formed the basis of the private law systems of Italy, the Netherlands, Belgium, Spain, Portugal (and their former colonies), and Poland. The Italian Civil Code of 1865, enacted after the unification of Italy, had a close but indirect relation to the Napoleonic Code. Germany incorporated the Code with only a few revisions. In the early 19th century the code was introduced to Haiti and the Dominican Republic, and it is still in force there. Bolivia and Chile followed closely the arrangement of the code and borrowed much of its substance. The Chilean code was in turn copied by Ecuador and Columbia, followed by Uruguay and Argentina.

An interesting fact is that in the United States, whose legal system is largely based on English common law, the state of Louisiana is unique in having a strong influence by the Napoleonic Code. For example there are significant differences in the bar exam and the legal standards of practice for attorneys between Louisiana and the other states. [6]

The influence of the Napoleonic Code has diminished at the turn of the century by the introduction of the German Civil Code and the Swiss Civil Code. However, more than two centuries after its promulgation, the Napoleonic Code is still living law in a great number of countries across the world. Considered to be the first successful universal codification since Justinian, it has influenced the civil law systems of modern continental European countries. Even today the French Civil Code of 1804 has not been significantly changed and in many ways it is the most enduring legacy of the French Revolution.

References

  1. Commonly also referred to as Napoleonic code
  2. including Paris
  3. Origins and impact of the French Civil Code - http://moj.gov.vn/en/ct/Lists/TalkingLaws/View_Detail.aspx?ItemID=95
  4. Code Napoléon - http://www.britannica.com/topic/Napoleonic-Code
  5. Napoleon Series - Government & Politics: The Civil Code - http://www.napoleon-series.org/research/government/c_code.html
  6. Louisiana's Napoleon Complex: The French influence on Pelican state jurisprudence - http://www.slate.com/articles/news_and_politics/explainer/2005/09/louisianas_napoleon_complex.html

Contributors

Admin and IncantoX

Bitnami