Napoleonic Code

First page of the 1804 original edition.

The Napoleonic Code — or Code Napoléon (originally, the Code civil des français) — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified. It was drafted rapidly by a commission of four eminent jurists and entered into force on March 21, 1804. The Napoleonic Code was not the first legal code to be established in a European country with a civil legal 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 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.^[1]

The Napoleonic Code in the Historisches Museum der Pfalz in Speyer.

History

The categories of the Napoleonic Code were drawn not from 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 law of:

1. persons
2. things
3. actions.

Similarly, the Napoleonic Code divided law into law of:

1. persons
2. property
3. acquisition of property
4. civil procedure (removed 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 to the people. Before the 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 Coutume de 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 to be replaced by a single legal code. Leading this drafting process was Jean Jacques Régis de Cambacérès. His drafts of 1793 (which he had been told to produce, impossibly, inside a month), 1794 and 1796, however, were adopted only piecemeal by a National Convention more concerned with the turmoil resulting from the various wars and strife with other European powers. A fresh start was made after Napoleon's coming to power in 1799. A commission of four eminent jurists was appointed in 1800, chaired by Cambacérès, now Second Consul, and sometimes by First Consul Napoleon himself. After intensive scrutiny by the Council of State, by 1801 the Code was complete, however it was not published until the 21 of March of 1804. Promulgated as the Civil Code of the French (code civil des Français), it was renamed the Napoleonic Code (code Napoléon) in 1807.

Developed mainly out of the various customals, this process was inspired by Justinian's sixth-century codification of Roman law, the Corpus Iuris Civilis and, within that, Justinian's Code (Codex). However, The Napoleonic Code differed from Justinian's in important ways: it incorporated all kinds of earlier rules and 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, i.e. Christian, content; and it was written in the vernacular, French.

The development of the Napoleonic Code was a fundamental change in the nature of the civil law system; it made laws much clearer and much 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 - as well as a commitment to Reason and, with that, to generality over particularity - led the Revolutionaries to take a negative view of judges making law. This is reflected in the Napoleonic Code 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 the gaps in the laws and regulations and, indeed, were prohibited from refusing to do so (Article 4). Moreover, both the codes and legislation have required judicial interpretation. In these ways, a vast body of judicially created law (jurisprudence) has come into existence; while there is no rule of stare decisis (binding precedent), the decisions by important courts have become more or less equivalent to case law (see jurisprudence constante).

Contents of the 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 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 them). The code also prohibited judges from refusing justice on grounds of insufficiency of the law—therefore 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 husband with respect to the wife and children; this was the general legal situation in Europe at the time. It did, however, allow divorce on liberal basis compared to other European countries, including divorce by mutual consent.^[2]

Other French codes of Napoleon's era

Penal code

In 1791, Louis Michel le Peletier de Saint-Fargeau had presented a new criminal code to the national Constituent Assembly.^[3] He explained that it outlawed only "true crimes" and not "phony offenses created by superstition, feudalism, the tax system, and [royal] despotism".^[4] He did not list the crimes "created by superstition" (meaning the Christian religion), but these certainly included blasphemy, heresy, sacrilege, and witchcraft. All these former offenses were 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 or same-sex sexual acts.

Code of civil procedure

As the entire legal system was being overhauled, the code of civil procedure was adopted in 1806.

Commercial code

The commercial code was adopted in 1807.^[5]

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; 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, of course, it has significantly changed since Napoléon's days (especially, with improvements of the right of the defense).

The French Revolution's Declaration of the Rights of Man and of the Citizen had declared that suspects were presumed to be innocent until they had been declared to be 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 citizen without connections." However, remand still was the normal procedure for suspects of severe crimes, such as murder.

The possibility for justice to endorse lengthy remand periods was one reason why the Napoleonic Code was criticized for de facto presumption of guilt, particularly in common law countries. Another reason was the combination of magistrate and prosecutor in one position. ^[6] However, the legal proceedings certainly did not have de jure presumption of guilt; for instance, the juror's oath explicitly recommended that the jury did not betray the interests of the defendants, and took attention of the means of defense.

The rules governing court proceedings, by today's standards, probably gave too much power to the prosecution; it must be said, however, that 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 allowed to have counsel (i.e. a lawyer) in England (the Prisoners' Counsel Act).^[5] 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 the defendant a lawyer if the defendant did not have one (failure to do so rendered the proceedings null).

Whether or not the assize courts, whose task was to judge severe crimes, were to operate with a jury was a topic of considerable controversy; Bonaparte supported judgment juries, and they were finally adopted. On the other hand, Bonaparte was opposed to the indictment jury ("grand jury" in common law countries) and preferred to give this task to the criminal section of the Court of Appeal. Some special courts were created for the judgment 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 today

The French codes - now more than 40 of them^[7] - are frequently amended, as well as judicially re-interpreted. Therefore, for more than a century now, all of the codes in force have actually been used in the annually revised editions published by Dalloz, Paris.^[8] These editions are massively annotated with references to other codes, as well as to relevant statutes, judicial decisions (even if unpublished) and international instruments. The basic version of the Civil Code in this form, although compact, runs to nearly 3,000 pages; the "Méga" version is on paper and, even more extensively, on CD-ROM; write by Serge Guinchard for the civil procedure, in 1999 and 2001, Dalloz editor.

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 also of Italy, the Netherlands, Belgium, Spain, Portugal (and their former colonies), as well as Poland (1808–1946). In the German regions on the left bank of the Rhine (Rhenish Palatinate and Prussian Rhine 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 despotic) rulers, nativism (local patriotism) among the governing elites and popular anti-French sentiment.^[9]

The Napoleonic Code was also adopted in 1864 in Romania (with some modifications), which is still in force as of 2011 (articles 461 to 1914). 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 1881-1883. Other codes with some influence in their own right were the Swiss, German, and Austrian ones, but even there 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 the English common law rather than from Roman roots. Scots law, though also a civil law system, is uncodified; it was strongly influenced by Romano-Dutch legal thought, and — after the Act of Union 1707 — by English law. In the Gulf nations 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 Gulf states, although less pronounced than in Kuwait, this primarily being due to the democratic nature of Kuwait, rather than the absolutist nature of many other 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 Quebec, which was 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 in the Napoleonic Code, such as the Chilean Civil Code and the Puerto Rican Civil Code. Despite being surrounded by Anglo-Saxon Common Law territories, Louisiana's civil code has kept its Roman roots and some of its aspects feature influences by the Napoleonic Code, but is based more on Roman and Spanish civil traditions. As a result, the bar exam and legal standards of practice in Louisiana are significantly different from other states, and reciprocity for lawyers from other states is not available.

See also

• Concordat of 1801
• Louis-Joseph Faure

References

1. ^ Robert B. Holtman, The Napoleonic Revolution (Baton Rouge:Louisiana State University Press, 1981)
2. ^ "The Code Napoléon: French Legislation on Divorce," Exploring the European Past: Texts & Images, Second Edition, ed. Timothy E. Gregory (Mason: Thomson, 2007), 62-64.
3. ^ "Livre III ... du code pénal" (in French). Choix de rapports, opinions et discours prononcés à la tribune nationale. VI. Paris: A. Eymery. 1819. p. 320. http://books.google.co.uk/books?id=wOcvAAAAMAAJ. Retrieved 2008-03-31. 
4. ^ "ces délits factices, créés par la superstition, la féodalité, la fiscalité et le despotisme" (id., p 325).
5. ^ ^{a b} "Commercial Code (Legislative Part)". http://www.legifrance.gouv.fr/html/codes_traduits/commercetextA.htm. ^{[dead link]}Archive copy at the Wayback Machine
6. ^ "French Criminal Procedure". New York Times. 14 April 1895. http://query.nytimes.com/mem/archive-free/pdf?res=F50C17FA385911738DDDAD0994DC405B8585F0D3. Retrieved 14 June 2011. 
7. ^ Légifrance: les codes en vigueur
8. ^ Dalloz
9. ^ Arvind 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. http://www3.interscience.wiley.com/journal/123270568/abstract. 

Notes

• G.Levasseur, Napoléon et l’élaboration des codes répressifs (Mélanges en homme à Jean Imbert, PUF, 1989 p. 371): Legal analysis of the Code of Criminal Procedure.
• Code Pénal and Code d'Instruction Criminelle - Original French Texts and other old legislation

External links

• Code civil (France), French Wikipedia
• English Translation of the Original Text
• Beginnings of Napoleonic Code
• Original French Text: Gallica (if necessary, search for "code civil")
• Current French Text: Légifrance