Napoleonic Code - Wikipedia
Napoleonic Code - Wikipedia
Napoleonic Code
Civil Code of the French
Code civil des Français
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The Napoleonic Code (French: Code Napoléon), officially the Civil Code of the French
(French: Code civil des Français; simply referred to as Code civil), is the French civil code
established during the French Consulate in 1804 and still in force in France, although heavily and
frequently amended since its inception.[1] Although Napoleon himself was not directly involved in
the drafting of the Code, as it was drafted by a commission of four eminent jurists,[2] he chaired
many of the commission's plenary sessions,[3] and his support was crucial to its passage into
law.[4]
The code, with its stress on clearly written and accessible law, was a major milestone in the
abolition of the previous patchwork of feudal laws.[5] Historian Robert Holtman regards it as one
of the few documents that have influenced the whole world.[2] The Napoleonic Code is often
portrayed to be one of the most widespread systems of law in the world, claimed to be in force in
various forms in about 120 countries, but many of those countries are civil code countries that had
their own version of their civil code for centuries.[6]
The Napoleonic Code was not the first legal code to be established in a European country with a
civil-law 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.[7][2] The Napoleonic Code influenced developing countries outside Europe
attempting to modernise and defeudalise their countries through legal reforms, such as those in
the Middle East,[8] while in Latin America the Spanish and Portuguese had established their own
versions of the civil code.[9]
History
The categories of the Napoleonic Code were not drawn from
earlier French law, but instead from Justinian's sixth-century
codification of Roman law, the Corpus Juris Civilis, and within
it, the Institutes.[10] The Institutes divide into the law of:
The Napoleonic Code in the
1. persons Historical Museum of the Palatinate
2. things in Speyer
3. actions.
Similarly, the Napoleonic Code divided the law into four sections:
1. persons
2. property
3. acquisition of property
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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. The Constituent Assembly on 5 October 1790 voted for a
codification of French laws, the Constitution of 1791 promised one, and the National Assembly
adopted a unanimous resolution on 4 September 1791 providing that "there shall be a code of civil
laws common for the entire realm."[11] However, it was the National Convention in 1793 which
established a special commission headed by Jean-Jacques-Régis de Cambacérès to oversee the
drafting process.[12]
His drafts of 1793 (for which Cambacérès had been given a one month deadline), 1794, and 1796
were all rejected by a National Convention and the French Directory of the time was more
preoccupied with the turmoil resulting from various wars and strife with other European powers.
The first draft contained 719 articles and was very revolutionary, but was rejected for being too
technical and criticised for not being radical or philosophical enough. The second, with only 297
articles, was rejected for being too brief and was criticised for being a mere manual of morals. The
third, expanded to 1,104 articles, was presented under the conservative Directory regime, but never
even came up for discussion.
Another commission, established in December 1799 established a fourth outline drafted in part by
Jean-Ignace Jacqueminot (1754–1813). Jacqueminot's draft, the so-called loi Jacqueminot, dealt
almost exclusively with persons[13] and emphasised the need to reform the divorce laws, to
strengthen parental authority and increase the testator's freedom to dispose of the free portion of
his estate.[14] It was rejected.
Napoleonic reforms
Napoleon's victory at the Battle of Marengo allowed him to consolidate his power in France[15]
Returning to Paris, he appointed on 12 August 1800 a commission of distinguished jurists and
politicians, including fr:Jacques de Maleville, François Denis Tronchet, Félix-Julien-Jean Bigot de
Préameneu, Jean-Étienne-Marie Portalis to draft a civil code.[16] For this commission, Cambacérès
(now Second Consul), and Napoleon himself chaired the plenary sessions.[3] After this process
finished, the Code was sent to the Legislative Body as a preliminary bill in December 1801, where it
was rejected by a vote of 142 to 139.[17] In response, Napoleon announced on 2 January 1802 that
he was suspending all projects, effectively closing the assemblies' sessions; simultaneously, he
went to the Sénat conservateur to berate its members. These tactics cowed the legislature into
submission, and gave Napoleon the majority he needed.[18] The code finally came into effect on 21
March 1804.[19]
The process developed mainly out of the various customs, but was inspired by Justinian's sixth-
century codification of Roman law, the Corpus Juris Civilis and, within that, Justinian's Code
(Codex). The Napoleonic Code, however, differed from Justinian's in important ways:
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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, but without any rule of stare
decisis.
With regard to family, the code established the supremacy of the husband over his wife and
children, the status quo in Europe at the time. Women had even fewer rights than children.
Divorce by mutual consent was abolished in 1804.[21]
In 1791, Louis Michel le Peletier de Saint-Fargeau presented a new criminal code to the National
Constituent Assembly.[22] He explained that it outlawed only "true crimes", and not "phony
offences created by superstition, feudalism, the tax system, and [royal] despotism".[23] He did not
list the crimes "created by superstition". The new penal code did not mention blasphemy, heresy,
sacrilege, witchcraft, incest, or homosexuality, which led to these former offences being swiftly
decriminalised. In 1810, a new criminal code was issued under Napoleon. As with the Penal Code
of 1791, it did not contain provisions for religious crimes, incest, or homosexuality.
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After an overhaul of the entire legal system, the new code of civil procedure was adopted in
1806.
The commercial code (code de commerce) was adopted in 1807.[24] The kernel of the
commercial code is the Book III, "Of The Different Modes of Acquiring Property", of the
Napoleonic Code, which sets out norms for contracts and transactions.
Code d'instruction: In 1808, the code d'instruction criminelle was published, laying out criminal
procedure. The parlement system from before the Revolution, had been much abused, and the
criminal courts established by the Revolution were complex and ineffective, subject to many
local pressures. The genesis of this code resulted in much debate and the basis of the modern
inquisitorial system of criminal courts in France and many civil law countries. It has significantly
changed since, especially with regard to the rights of the defendant.[25]
The French Revolution's Declaration of the Rights of Man and of the Citizen enunciated the
presumption of innocence until found guilty. Concerned by the possibility of arbitrary arrest and
detention, or excessive remand, Napoleon remarked that care should be taken to preserve personal
freedoms, especially before the Imperial Court: "these courts would have a great strength, they
should be prohibited from abusing this situation against weak citizens without connections."[26]
However, remand still was usual for defendants suspected of serious crimes such as murder.
The possibility of lengthy remand periods was one criticism, particularly voiced in common law
countries, of the Napoleonic Code and its de facto presumption of guilt. Another reason was the
combination of magistrate and prosecutor into a single role.[27] However, with the work of the juge
d'instruction accomplished, the trial itself did not have the same de jure presumption of guilt; for
instance, the juror's oath explicitly required jurors not betray the interests of the defendants or
ignore their defence.
The rules governing court proceedings gave significant power to the prosecution; however,
criminal justice in European countries in those days tended to 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
access to a lawyer before a Cour d'assises, and mandated the court to appoint a lawyer for the
defendants who did not have one. (Failing to do so nullified the proceedings.)
Whether or not the Cour d'assises, which judges severe crimes, should operate with a jury was a
topic of considerable controversy. Napoleon supported jury trials (or petit jury), and they were
finally adopted. On the other hand, Napoleon opposed the indictment jury ("grand jury" of
common law countries), and preferred to assign this task to the criminal division of the Court of
Appeals. Special courts were created to judge criminals who might intimidate the jury.
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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".[30]
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.[31]
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.[32] 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).[33]
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 among the governing elites, and popular anti-
French sentiment.[35]
A civil code with Napoleonic code influences was also adopted in 1864 in Romania, and remained
in force until 2011.[36]
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 1763 Treaty of Paris. However, most of the laws in Latin
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American countries are not heavily influenced on the Napoleonic Code, as the Spanish and
Portuguese versions of the civil code formed the foundation of the Latin American legal systems
e.g. the Chilean, Mexican,[37] and Puerto Rican civil codes.[38]
In Mauritius, the Civil Code, which originates from the Napoleonic Code, represents an important
primary source of law and provides for the rights of individuals, matrimonial regimes, contract
law, and property law, amongst others.[39] The French Civil Code was extended to Mauritius under
the title Code Napoléon by decree of Charles Mathieu Isidore Decaen, Capitaine-General, on 21
April 1808.[40] The Code was modified and embodied in Chapter 179 of the Revised Laws of
Mauritius 1945, edited by Sir Charlton Lane, former Chief Justice of Mauritius. The 1808 decree
was repealed by Act 9 of 1983, but the Revision of Laws Act which was enacted in 1974, made
provision, in section 7, for the publication of the Code under the title "Code Civil Mauricien."[41]
In the United States, the legal system is largely based on English common law. But the state of
Louisiana is unique in having a strong influence from French 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.[42] The 10th Amendment to the U.S. Constitution grants states control of
laws not specifically given to the federal government, so Louisiana's legal system retains many
French elements. 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 is the only U.S. state to practice forced
inheritance of an estate; additionally, some of Louisiana's laws clash with the Uniform Commercial
Code practiced by the other 49 states.[43]
Notes
[3]
[17]
[19]
References
Hollins, David (2006). "Battle of Marengo" in The Encyclopedia of the French Revolutionary
and Napoleonic War. ABC-CLIO. ISBN 1-85109-646-9.
Citations
1. Code civil des Français: édition originale et seule officielle (http://gallica.bnf.fr/ark:/12148/bpt6k
1061517/f2.image). Paris: L'Imprimerie de la République. 1804. Retrieved 28 November 2016
– via Gallica.
2. Robert B. Holtman, The Napoleonic Revolution (Baton Rouge: Louisiana State University
Press, 1981)
3. Roberts, Andrew (2014), "Lawgiver", Napoleon: A Life, Penguin. Of the commission's 107
plenary sessions, Napoleon chaired 55.
4. Roberts, Andrew, Napoleon: A Life,"Lawgiver"
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Further reading
Crabb, John H., trans. The French Civil Code, revised ed. (as amended to 1 July 1994).
Littleton, Colo.: Fred B. Rothman & Co.; Deventer, The Netherlands: Kluwer Law and Taxation,
1995.
Fairgrieve, Duncan, ed. The Influence of the French Civil Code on the Common Law and
Beyond. London: British Institute of International and Comparative Law, 2007.
Fisher, H. A. L. "The Codes", in Cambridge Modern History, ed. A. W. Ward (1906). Vol. IX, pp.
148–179. An old standard scholarly summary. online free (https://archive.org/details/in.ernet.dli.
2015.55514)
Halperin, Jean-Louis. The French Civil Code. Trans. Tony Weir. London: Routledge, 2006.
Josselin, Jean-Michel, and Alain Marciano. "The Making of the French Civil Code: An
Economic Interpretation". European Journal of Law and Economics 14.3 (2002): 193–203.
online (https://www.researchgate.net/profile/Alain_Marciano/publication/5145610_The_Making
_of_the_French_Civil_Code_An_Economic_Interpretation/links/580f0e9a08aef766ef115982.pd
f)
Lobingier, Charles Summer. "Napoleon and His Code". Harvard Law Rev. 32 (1918): 114+.
online (https://archive.org/details/jstor-1327640)
Lydorf, Claudia (2012), Romance Legal Family (http://ieg-ego.eu/en/threads/crossroads/legal-f
amilies/claudia-lydorf-romance-legal-family?set_language=en&-C=), EGO – European History
Online (http://www.ieg-ego.eu/), Mainz: Institute of European History (http://www.ieg-mainz.de/li
kecms/index.php), retrieved: 25 March 2021 (pdf (https://d-nb.info/1043606750/34)).
Schwartz, Bernard, ed. The Code Napoleon and the common-law world: the sesquicentennial
lectures delivered at the Law Center of New York University, December 13–15, 1954 (The
Lawbook Exchange, Ltd., 1998). 438 pp.
Séjean, Michel et al., eds. French civil code, 2020: English, French, Arabic. Trans. David W.
Gruning et al. LexisNexis; Paris: Sader Group, 2020.
Smithers, William W. "The Code Napoléon". American Law Register (1901): 127–147.
JSTOR 3306716 (https://www.jstor.org/stable/3306716).
Tunc, André. "Grand Outlines of the Code Napoleon". Tulane Law Review 29 (1954): 431+.
Tunc, André. "Husband and Wife Under French Law: Past, Present, Future". University of
Pennsylvania Law Review 104 (1955): 1064+.online (http://scholarship.law.upenn.edu/cgi/view
content.cgi?article=7495&context=penn_law_review)
External links
Code Napoléon in French Wikipedia
English translation of the original text (http://www.napoleon-series.org/research/government/c_
code.html)
The Code Napoleon, or the French Civil Code; Literally Translated from the Original and
Official Edition, Published at Paris, in 1804 by A Barrister at the Inner Temple (https://archive.or
g/stream/codenapoleonorf00statgoog#page/n4/mode/2up) (1st ed.). London: Printed for
Charles Hunter Booksellers. Retrieved 30 November 2016 – via the Internet Archive.
Beginnings of Napoleonic Code (http://www.cambaceres.org/vie-poli/code-civ/cod-civi.htm)
Current French Text: Légifrance (https://beta.legifrance.gouv.fr/codes/texte_lc/LEGITEXT00000
6070721/2021-07-01)
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