Napoleonic Code, French Code Napoléon, French civil code enacted on March 21, 1804, and still extant, with revisions. It was the main influence on the 19th-century civil codes of most countries of continental Europe and Latin America.
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Forces behind codification
The demand for codification and, indeed, codification itself preceded the Napoleonic era (1799–1815). Diversity of laws was the dominant characteristic of the prerevolutionary legal order. Roman law governed in the south of France, whereas in the northern provinces, including Paris, a customary law had developed, based largely on feudal Frankish and Germanic institutions. Marriage and family life were almost exclusively within the control of the Roman Catholic Church and governed by canon law. In addition, starting in the 16th century, a growing number of matters were governed by royal decrees and ordinances as well as by a case law developed by the parlements. The situation inspired Voltaire to observe that a traveler in France “changes his law almost as often as he changes his horses.” Each area had its own collection of customs, and, despite efforts in the 16th and 17th centuries to organize and codify each of those local customary laws, there had been little success at national unification. Vested interests blocked efforts at codification, because reform would encroach upon their privileges.
After the French Revolution, codification became not only possible but almost necessary. Powerful groups such as the manors and the guilds had been destroyed; the secular power of the church had been suppressed; and the provinces had been transformed into subdivisions of the new national state. Political unification was paired with a growing national consciousness, which, in turn, demanded a new body of law that would be uniform for the entire state. The Napoleonic Code, therefore, was founded on the premise that, for the first time in history, a purely rational law should be created, free from all past prejudices and deriving its content from “sublimated common sense”; its moral justification was to be found not in ancient custom or monarchical paternalism but in its conformity to the dictates of reason.
Giving expression to those beliefs and to the needs of the revolutionary government, the National Assembly adopted a unanimous resolution on September 4, 1791, providing that “there shall be a code of civil laws common for the entire realm.” Further steps toward the actual drafting of a civil code, however, were first taken by the National Convention in 1793, which established a special commission headed by Jean-Jacques-Régis de Cambacérès, duke de Parme, and charged it with the task of completing the project within a month. That commission prepared within six weeks of its creation a draft code consisting of 719 articles. Though truly revolutionary in both intent and content, the draft was rejected by the convention on the grounds that it was too technical and detailed to be easily understood by all citizens. A second, much-shorter, draft of 297 articles was offered in 1794, but it was little debated and had no success. Cambacérès’s persistent efforts produced a third draft (1796), containing 500 articles, but it was equally ill-fated. Another commission, established in 1799, presented a fourth scheme prepared in part by Jean-Ignace Jacqueminot.
Finally, the consulate, with Napoleon Bonaparte as first consul, resumed the legislative work, and a new commission was nominated. A final draft was submitted first to the legislative section and then to the plenary assembly of the newly reorganized Conseil d’État (“Council of State”). There it was extensively discussed, and with the steadfast participation and vigorous support of Napoleon as chairman, it was enacted into law piecemeal, in the form of 36 statutes passed between 1801 and 1803. On March 21, 1804, those statutes were consolidated in a single body of law—the Code Civil des Français. That title was changed to Code Napoléon in 1807 to honour the emperor who, as first consul of the republic, had brought to completion the monumental legislative undertaking. With the fall of the Napoleonic regime, the original title was restored in 1816. Reference to Napoleon was reinstated in the title of the code in 1852 by a decree of Louis-Napoléon (later Napoleon III), then president of the Second Republic. Since September 4, 1870, however, statutes have referred to it simply as the “civil code.”
Contents of the Napoleonic Code
Under the code all male citizens are equal: primogeniture, hereditary nobility, and class privileges are extinguished; civilian institutions are emancipated from ecclesiastical control; freedom of person, freedom of contract, and inviolability of private property are fundamental principles.
The first book of the code deals with the law of persons: the enjoyment of civil rights, the protection of personality, domicile, guardianship, tutorship, relations of parents and children, marriage, personal relations of spouses, and the dissolution of marriage by 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. Many of those provisions were reformed only in the second half of the 20th century. 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.
With regard to obligations, the law establishes the traditional Roman-law categories of contract, quasi-contract, delict, and quasi-delict. Freedom to contract is not spelled out explicitly but is an underlying principle in many provisions.
Dissemination of the Napoleonic Code and its influence
The code was originally introduced into areas under French control in 1804: Belgium, Luxembourg, parts of western Germany, northwestern Italy, Geneva, and Monaco. It was later introduced into territories conquered by Napoleon: Italy, the Netherlands, the Hanseatic lands, and much of the remainder of western Germany and Switzerland. The code is still in use in Belgium, Luxembourg, and Monaco.
During the 19th century, the Napoleonic Code was voluntarily adopted in a number of European and Latin American countries, either in the form of simple translation or with considerable modifications. The Italian Civil Code of 1865, enacted after the unification of Italy, had a close but indirect relationship with the Napoleonic Code. The new Italian code of 1942 departed to a large extent from that tradition. In the early 19th century, the code was introduced into 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 Colombia, closely followed by Uruguay and Argentina. In Louisiana, the only civil-law state in the United States (which is otherwise bound by common law), the civil code of 1825 (revised in 1870 and still in force) is closely connected with the Napoleonic Code.
The influence of the Napoleonic Code was diminished at the turn of the century by the introduction of the German Civil Code (1900) and the Swiss Civil Code (1912); the former was adopted by Japan and the latter by Turkey. In the 20th century, codes in Brazil, Mexico, Greece, and Peru were products of a comparative method, with ideas borrowed from the German, French, and Swiss traditions.
More than two centuries after its promulgation, the Napoleonic Code is still living law in a great part of the world. History has thus partly justified the melancholic words uttered by Napoleon in exile: “My real glory is not the forty battles I won, for Waterloo’s defeat will destroy the memory of as many victories.…What nothing will destroy, what will live forever, is my Civil Code.”
First page of the 1804 original edition.
|Original title||Code civil des Français|
|Date effective||21 March 1804 (frequently amended)|
The Napoleonic Code (French: Code Napoléon; officially Code civil des Français, referred to as (le) Code civil) is the Frenchcivil code established under Napoléon I in 1804.
It was drafted by a commission of four eminent jurists and entered into force on 21 March 1804. The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world.
The Napoleonic Code was not the first legal code to be established in a European country with a civillegal system; it was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1794), and the West Galician Code (Galicia, then part of Austria, 1797). It was, however, the first modern legal code to be adopted with a pan-European scope, and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars. The Napoleonic Code influenced developing countries outside Europe, especially in the Middle East, attempting to modernize their countries through legal reforms.
The categories of the Napoleonic Code were not drawn from the earlier French laws, but instead from Justinian’s sixth-century codification of Roman law, the Corpus Juris Civilis and within it, the Institutes. The Institutes divide law into the law of:
Similarly, the Napoleonic Code divided law into law of:
- acquisition of property
- civil procedure (moved into a separate code in 1806).
Napoleon set out to reform the French legal system in accordance with the ideas of the French Revolution, because the old feudal and royal laws seemed confusing and contradictory. Before the Napoleonic Code, France did not have a single set of laws; law consisted mainly of local customs, which had sometimes been officially compiled in "customals" (coutumes), notably the Custom of Paris. There were also exemptions, privileges, and special charters granted by the kings or other feudal lords. During the Revolution, the last vestiges of feudalism were abolished.
Specifically, as to civil law, the many different bodies of law used in different parts of France were replaced by a single legal code. Jean-Jacques Régis de Cambacérès led this drafting process. His drafts of 1793 (for which he had been given a one-month deadline), 1794, and 1799, however, were adopted only piecemeal by a National Convention more concerned about the turmoil resulting from the various wars and strife with other European powers.
A fresh start was made after Napoleon came to power in 1799. A commission of four eminent jurists was appointed in 1800, including Louis-Joseph Faure and chaired by Cambacérès (now Second Consul), and sometimes by the First Consul, Napoleon himself. The Code was complete by 1801, after intensive scrutiny by the Council of State, but was not published until 21 March 1804. It was promulgated as the "Civil Code of the French" (Code civil des Français), but was renamed "the Napoleonic Code" (Code Napoléon) from 1807 to 1815, and once again after the Second French Empire.
The process developed mainly out of the various customals, but was inspired by Justinian’s sixth-century codification of Roman law, the Corpus Iuris Civilis and, within that, Justinian's Code (Codex). The Napoleonic Code, however, differed from Justinian’s in important ways: it incorporated all kinds of earlier rules, not only legislation; it was not a collection of edited extracts, but a comprehensive rewrite; its structure was much more rational; it had no religious content; and it was written in the vernacular.
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 royal legislative power and, particularly in the final years before the Revolution, protests by judges representing views and privileges of the social classes to which they belonged. Such conflict led the Revolutionaries to take a negative view of judges making law.
This is reflected in the Napoleonic Code provision prohibiting judges from deciding a case by way of introducing a general rule (Article 5), since the creation of general rules is an exercise of legislative and not of judicial power. In theory, there is thus no case law in France. However, the courts still had to fill in the gaps in the laws and regulations and, indeed, were prohibited from refusing to do so (Article 4). Moreover, both the code and legislation have required judicial interpretation. Thus a vast body of case law has come into existence. There is no rule of stare decisis (binding precedent) in French law, but decisions by important courts have become more or less equivalent to case law (see jurisprudence constante).
Contents of the Napoleonic Code
The preliminary article of the Code established certain important provisions regarding the rule of law. Laws could be applied only if they had been duly promulgated, and then only if they had been published officially (including provisions for publishing delays, given the means of communication available at the time). Thus, no secret laws were authorized. It prohibited ex post facto laws (i.e. laws that apply to events that occurred before their introduction). The code also prohibited judges from refusing justice on grounds of insufficiency of the law, thereby encouraging them to interpret the law. On the other hand, it prohibited judges from passing general judgments of a legislative value (see above).
With regard to family, the Code established the supremacy of the man over the wife and children, which was the general legal situation in Europe at the time. A woman was given fewer rights than a minor. Divorce by mutual consent was abolished in 1804.
Other French codes of Napoleon's era
The Draft on Military Code was presented to Napoleon by the Special Commission headed by Pierre Daru in June 1805; however, as the War Against the Third Coalition progressed, the Code was put aside and never implemented.
In 1791, Louis Michel le Peletier de Saint-Fargeau presented a new criminal code to the national Constituent Assembly. He explained that it outlawed only “true crimes”, and not “phony offenses created by superstition, feudalism, the tax system, and [royal] despotism”. He did not list the crimes "created by superstition". The new penal code did not mention blasphemy, heresy, sacrilege, witchcraft or homosexuality, which led to these former offences being swiftly decriminalized. In 1810, a new criminal code was issued under Napoleon. As with the Penal Code of 1791, it did not contain provisions against religious crimes.
Code of civil procedure
As the entire legal system was being overhauled, the code of civil procedure was adopted in 1806.
The commercial code (code de commerce) was adopted in 1807. The kernel of the commercial code is the BOOK III, "Of The Different Modes Of Acquiring Property", of the Napoleonic Code. It is a norm about the contracts and transactions.
Code of criminal instruction
In 1808, a code of criminal instruction (code d'instruction criminelle) was published. This code laid out criminal procedure. The parlement system, from before the Revolution, had been guilty of much abuse, while the criminal courts established by the Revolution were a complex and ineffective system, subject to many local pressures. The genesis of this code resulted in much debate. The resulting code is the basis of the modern so-called "inquisitorial system" of criminal courts, used in France and many civil law countries, though significantly changed since Bonaparte's day (especially with regard to the expansion of the rights of the defendant).
The French Revolution's Declaration of the Rights of Man and of the Citizen declared that suspects were presumed to be innocent until they had been declared guilty by a court. A concern of Bonaparte's was the possibility of arbitrary arrest, or excessive remand (imprisonment prior to a trial). Bonaparte remarked that care should be taken to preserve personal freedoms, especially when the case was before the Imperial Court: "these courts would have a great strength, they should be prohibited from abusing this situation against weak citizens without connections." However, remand still was the usual procedure for defendants suspected of serious crimes such as murder.
The possibility of lengthy remand periods was one reason why the Napoleonic Code was criticized for its de factopresumption of guilt, particularly in common law countries. Another reason was the combination of magistrate and prosecutor in one position. However, the legal proceedings did not have de jure presumption of guilt; for instance, the juror’s oath explicitly required that the jury not betray the interests of the defendants and not ignore the means of defense.
The rules governing court proceedings, by today’s standards, gave significant power to the prosecution; however, criminal justice in European countries in those days tended to side with repression. For instance, it was only in 1836 that prisoners charged with a felony were given a formal right to counsel, in England. In comparison, article 294 of the Napoleonic Code of Criminal Procedure allowed the defendant to have a lawyer before the Court of Assizes (judging felonies), and mandated the court to appoint a lawyer for the defendant if the defendant did not have one (failure to do so rendered the proceedings null).
Whether or not the Cour d'assises, whose task was to judge severe crimes, were to operate with a jury was a topic of considerable controversy. Bonaparte supported jury trials (or petit jury), and they were finally adopted. On the other hand, Bonaparte was opposed to the indictment jury ("grand jury" of common law countries), and preferred to give this task to the criminal division of the Court of Appeals. Some special courts were created to judge of criminals who could intimidate the jury.
Bonaparte also insisted that the courts judging civil and criminal cases should be the same, if only to give them more prestige.
The French codes in the 21st century
The French codes, now more than 60 in number, are frequently amended, as well as judicially re-interpreted. Therefore, for over a century all of the codes in force have been documented in the annually revised editions published by Dalloz (Paris). These editions consist of thorough annotations, with references to other codes, relevant statutes, judicial decisions (even if unpublished), and international instruments. The "small (petit)" version of the Civil Code in this form is nearly 3,000 pages, available in print and online. Additional material, including scholarly articles, is added in the larger "expert (expert)" version and the still larger "mega (méga)" version, both of which are available in print and on searchable CD-ROM. By this stage, it has been suggested, the Civil Code has become "less a book than a database".
The sheer number of codes, together with digitisation, led the Commission supérieure de codification to reflect in its annual report for 2011:
- The Commission observes that the age of drawing up new codes is probably reaching its end. The aim of a nearly complete codification of the law is no longer pursued, for three reasons: firstly, the technical developments by which texts are provided in non-physical form offer to users modes of access that are comparable in many ways to those available through a code; secondly, the creation of new codes encounters a kind of law of diminishing returns in that, the more progress that is made in the development of new codes, the trickier it becomes to determine in which code particular provisions should be located; and, finally, it is clear that certain kinds of provision [...] are unsuitable for codification, since codification makes sense only when it involves provisions that possess sufficient generality.
A year later, the Commission recommended that, after its current codification projects were completed, there should not be any further codes; an additional reason was government delay in publishing reforms that the Commission had completed. The government responded encouragingly in March 2013, but the Commission complains that this has not been followed through; in particular, that the government has abandoned its plan for a public service code (code général de la fonction publique).
Codes in other countries
Even though the Napoleonic Code was not the first civil code and did not represent the whole of his empire, it was one of the most influential. 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 (1808–1946). In the German regions on the west bank of the Rhine (Rhenish Palatinate and PrussianRhine Province), the former Duchy of Berg and the Grand Duchy of Baden, the Napoleonic Code was in use until the introduction of the Bürgerliches Gesetzbuch in 1900 as the first common civil code for the entire German Empire.
A number of factors have been shown by Arvind and Stirton to have had a determinative role in the decision by the German states to receive the Code, including territorial concerns, Napoleonic control and influence, the strength of central state institutions, a feudal economy and society, rule by liberal (enlightened despotism) rulers, nativism (local patriotism) among the governing elites, and popular anti-French sentiment.
A civil code with strong Napoleonic influences was also adopted in 1864 in Romania, and remained in force until 2011. The Code was also adopted in Egypt as part of the system of mixed courts introduced in Egypt after the fall of Khedive Ismail. The Code was translated into Arabic from the French by Youssef Wahba Pasha between 1881 and 1883. Other codes with some influence in their own right were the Swiss, German, and Austrian codes, but even therein some influence of the French code can be felt, as the Napoleonic Code is considered the first successful codification.
Thus, the civil law systems of the countries of modern continental Europe, with the exception of Russia and the Scandinavian countries have, to different degrees, been influenced by the Napoleonic Code. The legal systems of the United Kingdom other than Scotland, as well as Ireland and the Commonwealth, are derived from English common law rather than from Roman roots. Scots law, though also a civil law system, is uncodified; it was strongly influenced by Roman-Dutch legal thought, and after the Act of Union 1707, by English law.
In the Persian GulfArab states of the Middle East, the influence of the Napoleonic Code mixed with hints of Islamic law is clear, even in Saudi Arabia (which abides more towards Islamic law). In Kuwait, for example, property rights, women’s rights, and the education system can be seen as Islamic reenactments of the French civil code. Some of these aspects can be seen in other Persian Gulf Arab states (although less pronounced than in Kuwait), this primarily being due to the relatively democratic nature of Kuwait, rather than the absolutist nature of many other Persian Gulf nations.
The term "Napoleonic Code" is also used to refer to legal codes of other jurisdictions that are influenced by the French Code Napoléon, especially the Civil Code of Lower Canada (replaced in 1994 by the Civil Code of Quebec), mainly derived from the Coutume de Paris, which the British continued to use in Canada following the Treaty of Paris in 1763. Most of the laws in Latin American countries are also heavily based on the Napoleonic Code, e.g. the Chilean Civil Code and the Puerto Rican Civil Code.
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 from Napoleonic Code and Spanish legal traditions on its civil code (Spanish and French colonial forces quarreled over Louisiana during most of the 1700s, with Spain ultimately ceding the territory to France in 1800, which in turn sold the territory to the United States in 1803). Examples of the practical legal differences between Louisiana and the other states include the bar exam and legal standards of practice for attorneys in Louisiana being significantly different from other states; Louisiana being the only American state to practice forced heirship of a deceased person's estate; and some of Louisiana's laws clashing with the Uniform Commercial Code practiced by the other 49 states.
- The "Code Napoleon" is mentioned in E. M. Forster's posthumously published novel, Maurice (1971), with reference to France being a safe haven for gay men or, as Maurice puts it, "unspeakable(s) of the Oscar Wilde type."
- The Napoleonic Code is mentioned by Stanley Kowalski in A Streetcar Named Desire, in an effort to ensure he could benefit from any inheritance his wife Stella might share with her sister Blanche DuBois.
- ^Code civil des français: édition originale et seule officielle. Paris: L'Impremerie de la République. XII. 1804. Retrieved November 28, 2016 – via Gallica.
- ^ abcRobert B. Holtman, The Napoleonic Revolution (Baton Rouge: Louisiana State University Press, 1981)
- ^Mohamed A.M. Ismail (2016). Globalization and New International Public Works Agreements in Developing Countries: An Analytical Perspective. Routledge. p. 19. ISBN 9781317127031 – via Google Books.
- ^Iain Stewart (2012). "Mors Codicis: End of the Age of Codification?". Tulane European & Civil Law Forum. 27: 17 at 23–24.
- ^Smith, Bonnie (2006). "Gender". Gale Virtual Reference Library. Charles Scribner's Sons. Retrieved 17 Feb 2016.
- ^"The Code Napoléon: French Legislation on Divorce," Exploring the European Past: Texts & Images, Second Edition, ed. Timothy E. Gregory (Mason: Thomson, 2007), 62-64.
- ^"Livre III ... du code pénal". Choix de rapports, opinions et discours prononcés à la tribune nationale (in French). VI. Paris: A. Eymery. 1819. p. 320. Retrieved 2008-03-31.
- ^“ces délits factices, créés par la superstition, la féodalité, la fiscalité et le despotisme” (id., p 325).
- ^Code de commerce Retrieved 2011-12-30
- ^"French Criminal Procedure". New York Times. 14 April 1895. Retrieved 14 June 2011.
- ^"Recherche simple dans les codes en vigueur - Legifrance". legifrance.gouv.fr.
- ^"Code civil, Code du travail, tous les livres de droit des Editions Dalloz". dalloz.fr.
- ^Iain Stewart (2012). "Mors Codicis: End of the Age of Codification?". Tulane European & Civil Law Forum. 27: 17 at 24–25.
- ^Commission supérieure de codification, Vingt et unième rapport annuel 2010 (Paris, 2011), 13; quoted and translated, Iain Stewart (2012). "Mors Codicis: End of the Age of Codification?". Tulane European & Civil Law Forum. 27: 17 at 25.
- ^Commission supérieure de codification, Vingt-deuxième rapport annuel 2011 (Paris, 2012), 21.
- ^Commission supérieure de codification, Vingt-quatrième rapport annuel 2013 (Paris, 2014), 6-7.
- ^ abArvind TT; Stirton L (March 2010). "Explaining the Reception of the Code Napoleon in Germany: a fuzzy-set qualitative comparative analysis". Legal Studies. 30 (1): 1–29. doi:10.1111/j.1748-121X.2009.00150.x.
- ^"Noul Cod civil promovează medierea". 2013-05-05. Retrieved 2013-05-31.
- ^Rabel, Ernst (1950), "Private Laws of Western Civilization: Part II. The French Civil Code", Louisiana Law Review, 10, p. 110, retrieved December 1, 2016
- ^Bonfield, Lloyd (2006). "Napoleonic Code". Gale Virtual Reference Library. Charles Scribner's Sons. Retrieved 17 Feb 2016.
- ^Engber, Daniel. Is Louisiana Under Napoleonic Code? Slate.com, retrieved 11 September 2014