COMMON LAW AND RECEPTION
3 In some regions, such as Italy and the south of France, there was a gradual, spontaneous process of change which led to the replaceÂment of old customary law by the rediscovered Roman law.
This occurred very early, from the twelfth century onwards. Elsewhere, in northern France and the southern Netherlands, customary law persisted, and was actually established and promulgated by central authorities (�homologation of customs’). Even there, however, Roman law had an important supplementary role and remained the basis of learned commentaries. In the northern Netherlands, the position was different again. Although there was an order to unify customs, it was hardly implemented at all and the resulting gap in the law led to the creation of Roman-Dutch law (Rooms-Hollands recht) in the seventeenth century. This was a jurisprudential synthesis of Roman and customary law, and the predominant element in it was the Roman one. The influence of Roman law was even more marked in the German empire, where it was decided towards 1500 to abandon medieval customs and �receive’ Iyecipere') Roman law as the national law: this phenomenon is known as the reception. Consequently modern German law has, paradoxically, a markedly more Roman and less Germanic character than French law.Developments in England were entirely different. There is no doubt that England too was affected by the learned law, which then constituted the common law of Europe, both through canon law in the church courts of the Roman Catholic Church and then the Anglican Church, and also through Roman law in university teaching and in the practice of certain specialist courts. None the less the most important element of English law, the Common Law,2 was developed from Germanic customary law and feudal law, quite independently of Roman law. As a result the common-law system differs fundamentally from the continental system.
A further signifiÂcant difference is that England developed a national law much earlier than other countries. A Common Law for the whole of the kingdom of England was developed by the royal courts from the twelfth century and was then expounded and commented on in legal works. A final peculiarity of English law is its continuity; there was no break in its development comparable with that caused by the great modern codifications on the continent. Not only was the law never codified, but the old law was never abrogated and replaced by a modern, let alone a revolutionary, legal system. So the system of Common Law is characterized by historical continuity; the statutes in force and the authoritative judgments may be very ancient or they may be quite recent.^i There are good reasons for preferring the expression â€?le common law’ to â€?la common law’, by analogy with the arguments which Criscuoli has put forward in favour of *il common law’ rather than â€?la common law’ in Italian. The main argument is that the masculine refers to law (droit) and the feminine to Ioi (statute): the common law is a droit and not a Ioi (G. Criscuoli, â€?Valore semantico e Contenuto dommatico dell’espressione “common law” nel Iinguaggio giuridico italiano’, Rivista trimestriale di diritto e proceduτa civile (1967), 1,466-73. Yet the question is not simple, and the confusion surrounding the term â€?common law’ - common droit or common Ioi - is very old, going back in England itself to the Middle Ages. Thus, â€?common law’ was translated as â€?lay commune’ in 1297 and as â€?comun dreit’ in the Miroir des Justices of 1290; in 1377 the curious form â€?commune Droit’ is found; see C. H. McIlwain, Constitutionalism and the changing world (Cornell, 1939), 128, 132, 137.
THE COMPILATION AND PROMULGATION OF THE CODE CIVIL OF l804
4 The coup d’etat of 18 Brumaire (9 November 1799) marked the beginning of the Napoleonic regime, the re-establishment of martial law and the end of the most turbulent decade of French history.
â€?The Revolution is in thrall to the principles which inspired it: it is over.’ One of Napoleon’s concerns was to provide the nation with a collection of codes. The prevailing legal uncertainty was to be brought to an end by the use in legal practice of universally valid codes. During the Revolution, the old law had certainly been abrogated to a large extent, but this process had not been compleÂmented by the introduction of a new legal system which was recognised as being generally applicable. Only some areas of law had been subject to new legislation^ and all attempts at codifying the civil law had failed. These draft codes had been conceived rather vaguely more as rules of conduct for the benefit of good citizens than as laws, and were never promulgated in the form of statutes. In any case, depending on the political inclinations of successive regimes, the draft codes were regarded at one time as excessively traditional and at another as insufficiently revolutionary. The various drafts were compiled between 1793 and 1799 by different commissions presided over by the lawyer and statesman J. J. de Cambaceres, who was a member of the National Convention in 1792. The Revolution also changed and democratized the administration of justice proÂfoundly, while the universities and their law faculties had been abolished in 1793, and new schools of law did not open until 1804.In order to bridge the gulf opened up by this revolutionary upheaval, Napoleon decided to introduce effective legislation in France by promulgating â€?his’ codes. Naturally â€?his’ codes does not mean that the general and first consul compiled the Code civil at his desk with his own hands. The codes are â€?Napoleonic’, because it was owing to Napoleon’s political will and determination that the 1804 Code civil in particular was compiled in record time. In August 1800 a commission of four lawyers was instructed to carry out the task.
3 For example, in the field of private law, the great systematic statutes of lasting importance on divorce, marriage and civil status (1792), illegitimacy (1793), inheritance (1794), privileges, hypothecs and the transfer of property (1798).
This period of so-called â€?intermeÂdiate law’ (an interval or transitional law between the old law of the ancien regime and the new law of the Napoleonic codes) also saw the promulgation of a penal code in 1791 and a code of crimes and penalties in 1795.Barely four months later it was complete. Its authors were proÂfessional lawyers who had been educated under the ancien regime and had pursued careers as advocates or magistrates: Fr. Tronchet, J. Portalis, F. Bigot-Preameneu and J. de Maleville.
Tronchet, a distinguished specialist in customary law, came from the north. Portalis, the most brilliant of the four, was a Romanist from the south. He was profoundly learned in philosophy, and conceived law not merely as a skill but as an important element in the social development of his time. His views emerge particularly clearly from his well-known Discours preliminaire, which is the introÂduction to the draft code of 1801: in it he expounds the philosophy of the Code civil (a question to which we shall return).
The draft put forward by this commission was submitted to the Tribunal de Cassation and Tribunaux d’Appel; after revision to take account of their comments, it was laid before the Conseil d’Etat presided over by Cambaceres. Cambaceres was hostile to the doctrinal approach to law, and above all to general formulations and definitions. Napoleon himself took part in the debate and sometimes imposed his own views,+ and it was in the Conseil d’Etat that the Code took on its final shape. The Tribunat raised political and ideological objections, but Napoleon was able to overcome the opposition and achieve his own ends. The promulgation of the Code by the Corps Iegislatif met with no further obstacles: from 5 March 1803 to 21 March 1804 a series of thirty-six statutes was passed, and on 21 March 1804 consolidated into 2,281 articles constituting the Code civil des franςais. The name was changed by law in 1807 to Code Napoleon, but the new name disappeared with the fall of the emperor.
In the field of private law,the Code civil was followed by the Code deprocedure civile of 1806 which came into force on 1 January 1807, and in 1807 by the Code de commerce which came into force on 1 January 1808.« The first consul himself presided at thirty-five of the eighty-seven sessions. His personal views strongly influenced, among other things, the provisions on the authority of the paterfamilias for, according to him, â€?just as the head of the family is subject in an absolute manner to the government, so the family is subject in absolute manner to its head’. Napoleon’s views were also decisive for the subordinate position of (married) women and for the law of divorce (measures on divorce by mutual consent and adoption were introduced at his instance, no doubt for his own political reasons). On the other hand Napoleon had no interest in book n and paid only slight attention to book πι.
s In criminal law a Code construction Criminelle and a Code ptnal were promulgated in 1808 and 1810 respectively. These came into force on t January 1811.