LESSON 10: CODIFICATIONS___________________________________________________________________

a. The precedents: The French Civil Law Code projects (1793-1799)_____________________________________

- Codification: Is the organisation of a systematic legal order.
- Napoleonic achievement: The crowning achievement of the Napoleonic years was the codification of private,
criminal and procedural law.
- Some authors were still claiming ius commune, the recovery of Roman law and rejected codifications.
- Initial proposal for codes of criminal and procedure law (they did not reach parliamentarian consensus).
 The initiative for producing a civil code was set during the Jacobin era. In 1793 the Convention assigned
a commission the task of drafting the project of a code.
 It was undertaken by Jean-Jacques-Régis de Cambacérès, a jurist who played a key role during
the following 15 years.
 The 1973 draft was composed by 719 articles of civil law.
 It adopted the classic tripartite division:
• Originating persons and families; property and contracts.
 Equal rights to legitimate and illegitimate children; simple divorce procedure, etc.
- New draft based on a anti-Jacobin reaction: 1795.
Third version of the civil code which included 1,104 articles.

Restrictions on divorce, Power over a wife´s property, Rights of succession of illegitimate children
reduced.
- In 1798 private projects for a code were multiplied (Target, Jean Guillemot).
- New draft: With the advent of the Consulate in 1799.
A project with 900 articles was presented.

Limited to family law, succession and gifts.

Notable restrictions in divorce, The reintroduction of the will as an instrument inducing virtue in children (Bentham).
b. The Napoleonic Code Civil (1804)_______________________________________________________________
- The origin of modern legislative positivism.
- 1800: a new commission drafted the code that succeeded.
 It was discussed in the course of more than 100 meeting, even Napoleon participated.
 Re-examination of Roman law, customary norms and revolutionary ideals by The Council of State.
 Code made by formulas which combined rigour with clarity.
- Approval: 21 March 1804.
 Once it came into effect, ordinances, customs, Roman laws, sovereign court procedures and every other
source of law ceased to be effective – ius commune was erased.
- Aim: Avoiding obscurity, silence or insufficiency of the law in the judgements.
- Concrete application of the fundamental rights of property and freedom stated in the 1789 Declaration of Rights.
- It placed property at the centre of private law (also in public law, representation and the census).
- Balance between tradition and innovation.
- The civil code is made up of 2,281 articles, subdivided into three parts:
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  Book I: Of persons.
 Book II: Goods and the different modification of property.
 Book III: On the different modes of acquiring property.
- Patriarchal design.
• Marriage required the father´s consent (until the age of 25 for daughters)
• Causes of divorce were limited.
 Adultery on the part of a wife was considered cause of divorce.
• Assets could be administrated solely by the husband.
• “Public peace depends foremost on paternal authority”.
• Illegitimate children were excluded from the family.
• Adoption was limited.
- Three main features.
• Double equilibrium (two branches of French law) between Roman law and customary law (plus
revolutionary ideals).
• Model of paternity.
• Creation of a coherent private law regime - high quality.
c. The Austrian Codes___________________________________________________________________________

In the same years that Napoleon was promoting his codification, the Austrian civil codes were also being drafted
in Vienna.
- 1803: A criminal code was approved in Vienna (by Francis I, son of Leopold II).
• Included both substantive and procedural criminal law.
- 1811: The Austrian Civil Code (ABGB) – great significance in Europe (still in effect in Austria).
• Distinction between law and morality (Kant’s legal and philosophical thought).
• It balanced tradition and innovation (Similarly to the French model).
 Some ius commune tradition prevailed (property).
• Individual rights and family law (Felt the impact of the Enlightened thinking).
 Women could manage their own assets.
 Education of children and parental responsibility was shared between both parents.
 Illegitimate children would be cared.
d. The Spanish Civil Code (1888)__________________________________________________________________

A national civil code was approved in Spain in 1888.

- Long and difficult process before approval.

- A project emerged in 1851 – proposal for a unified codification (French model).
- Resistance from the defenders of a pluralistic Spain, defenders of the fueros.
 Tension between those opposing codification and those defending having separate civil codes for Castile,
Aragon, Catalonia, Navarre, Alava, Bizkaia and Gipuzkoa.
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- The solution: The code from 1888 is a general law but local civil codes would prevail, it caused controversy.

1. The Civil Code in Navarre (Fuero Nuevo).

- The civil code from Navarre, also called Fuero Nuevo, includes our private law.
- Codification and compilation of private/civil law in Navarre:
• 1973
• 2019