FRANCE

74 The years from 1789 to 1804 had been troubled but also very creative: suddenly everything - even the boldest and most improb­able innovations - seemed possible. The Napoleonic codes brought this brief period to an end and inaugurated a century of stability.

During the Revolution the universities of the ancien regime, and their law faculties in particular, had been abolished. Some years later, schools of law were founded again, and in 1808 university teaching of law recommenced, although on a very different basis. The new system provided for a single Imperial University compris­ing twelve faculties of law, which were of identical standing and were under the direction of a central administration. Teaching and the subjects taught were strictly supervised by five inspectors-general. In 1809 a vice-rector was actually appointed in order to oversee the dean of the Paris faculty. This system was not operated in its full rigour,¹ but it did for long influence the French university world profoundly. It is scarcely surprising, in an atmosphere of extreme

^, There are cases of professors who had criticized statutes being accused of inciting disobedience; even a Roman law textb∞k was impounded by the censor.

At the beginning of the nineteenth century, however, there were still some lawyers educated under the ancien regime who devoted their studies to the new codes, but continued to make use of the sources from which the Code civil had drawn so much, Roman and customary law. Philippe Antoine, count Merlin de Douai (d. 1838), was certainly among the most learned lawyers of his day and, as political circumstances changed, he pursued a turbulent political career, during which he made an important contribution to the develop­ment Ofintermediate law, and acted as Napoleon’s personal adviser at the time of the compilation of the Code civil. His works amount virtually to an encyclopaedia of French law ancient and modern, whose aim was to explain the new legislation with the aid of the old law. He published a Repertoire universel et raisonne de jurisprudence's and a complementary Recueil alphabetique des questions de droit A Jacques de Maleville (d. 1824), who has already been mentioned as one of the compilers of the Code civile from 1805 published an Analyse raisonnee de la discussion du Code civil au Conseil d’Etat, which is both an account of the works preliminary to the codification and a doctrinal com­mentary. The Germanjurist, K. S. Zachariae (d. 1842), who was a professor in Heidelberg, is a special case. He came from the Rhineland, which at that time was under French rule, and in 1808 published the first proper commentary on the Code civil.

^, The name was suggested by E. Glasson who, on the occasion of the centenary of the Code civil, spoke of �civil lawyers who have formed a sort of school which might be called the School of Exegesis’.

3 Paris, 1807-8, 4 vols. (the 3rd edn is in fact a revised version of an older work; 4th edn, 1812-25, ¹7 vols.; 5th edn, 1827-8, 15 vols.).

* Paris, Year XI-XII, 7 vols.; 4th edn, 1827-30. s See above, section 4.

a great influence in France, since it was the model for a celebrated and authoritative commentary (on which see below) by two pro­fessors of the university of Strasbourg, C. Aubry (d. 1883) and F.- C. Rau {d. 1877).

These lawyers, who had been educated and had sometimes practised in the eighteenth century, represent a transitional phase. After them, the legal scene was dominated by true exegetes, to whom ancient law was no more than an object for historical study. Among the major jurists of this new generation pride of place must go to A. Duranton (d. 1866), professor in Paris and the first French author of a complete commentary on the Code civil {Cours de droit Jranfais suivant Ie Code civil, 21 vols., 1825-37). The career of this first �pure exegete’ was also characteristic of the new generation: by contrast with the sometimes dangerous professional quarrels of his predecessors of the revolutionary period, Duranton managed to occupy his university chair without incident for thirty-six years, which enabled him to publish regular successive volumes of his Cours. Another exegete was R. Troplong {d. 1869), who was a magistrate and president of the Cour de Cassation. He started to publish his work Le droit civil explique suivant les articles du Code in 1836. It finally reached twenty­seven volumes.

The Strasbourg professors Aubry and Rau, who have already been mentioned, occupy a special place in the French School of Exegesis. They were familiar with German Systematicjurisprudence in general and the work of Zachariae in particular. Initially, their commentary on the Code civil was so close to Zachariae⁵S Handbuch that they published their own work as an adaptation of it: Cours de droit civil Jranfais traduit de l^,allemand de C. S. Z^ac^^lar^^ae ∙ ∙ ∙ ^{revu et} augmenti (1838). In the third and fourth editions of 1869 and 1879, however, the commentary is no longer presented as a translation. While the Cours was (or at least became) a complete and original

⁶ The many editions of these classic works also show the stability of the regime. Demolombe^,s Cours_i for instance, reached its fifth edition in 1874-9.

French work, owing to German influence it occupies a place apart in legal literature. The subject-matter was not in the order of the code, but arranged according to a system of general concepts which had been particularly popular in Germany since the days of the School of Natural Law? German influence also explains why the authors make a distinction (unusual in France) between theoretical and practical civil law. Although this idiosyncratic approach was criti­cized and was not followed, numerous lawyers have recognized the work as one of the masterpieces of French scholarship.

Criticism of the School of Exegesis made little headway before the end of the nineteenth century. At that time criticism was directed not just at the method followed by the school and at its positivistic concept of law, but also at some of the principles of the Code civil: excessive individualism, the lack of an adequate regulation of employment, exaggerated respect for freedom of contract, absolute rights of property, the role of the paterfamilias, and so forth. All these themes have taken on still greater importance in the course of the twentieth century. Here the following names deserve mention: Fr Geny (d. 1959), author of a Methode d^,interpretation et sources du droit priveJiranfais (1899); M. Planiol {d. 1931), who in 1899 published the first volume of his Traite elementaire de droit civil-, and A. Esmein (rf. 1913), founder in 1902 of the Revue Irimestrielle de droit civil.

The essential theses of the School of Exegesis were that law and statute were identical, and the other sources of law - custom, schol­arship, case law, natural law - had only secondary importance. To understand the exact meaning of the codes, it was necessary to set out from the text, from the text alone, and not from its sources. Scholarship and case law had therefore to resist going back beyond the codes, for that would inexorably lead to uncertainty. The legislator had chosen between different possibilities ancient and modern and, if his choice was not observed, the law would sink back into the diversity and uncertainty of the old sources, and so into the very faults for which the old law had been criticized. This approach (fairly described as â€?fetishism for written statute’) also ruled out any recourse to natural law or â€?general principles of law’. Demolombe asserted that â€?clear law’ required no commentary, and that the law â€?ought to be applied even when it does not appear to conform to general principles of law or equity’.⁸

’ See above, sections 63 and 65.

⁸ The same is said by many others, Cf. Bouckaert, Exegetische school, 124, 454 n. 104.

According to Laurent, authors who invoked the �spirit of the statute’ to mitigate its literal meaning were guilty of trying to revive the ancient supremacy of scholarship and to seize a creative role in the development of law; guilty, in other words, of usurping the function of the legislator. The task of scholarship was �not to reform but to explain statute’; it was equally irrelevant to invoke the need to adapt the law in line with social development. Laurent did not hesitate to take his thesis to extremes: �Statute’, he claimed, �even if it were a thousand times absurd, would still have to be followed to the letter, because the text is clear and formal.'^[27]

Considerations of equity were also irrelevant, since they were individual and subjective. The situation where a judge might be called on to make a ruling as a �minister of equity’, owing to the silence of statute, �was so rare that it may be left aside for the purposes of our discussion’.^[28] The right of disobedience also had to be rejected, since even an unjust statute must be observed. It would be for the lawyers to point to unjust measures, in the hope that the legislator would wish to remedy them. In any case, unjust statutes would be rare because the codes, the nineteenth-century lawyers believed, would correspond to the ideal image of law, for they fused statute, law, and natural equity. This general complacency is one of the most striking characteristics of the School of Exegesis.

Some authors so resolutely refused to recognize custom as a source of law that they would not even admit its existence and applicability when statute referred to it expressly. And the obsession with the statutory text led scholarship to invent purely hypothetical situa­tions which might fall under one article of the code or another, instead of considering the real cases encountered in case law. It was an attitude which led to abstract theoretical discussion, and which alienated jurisprudence from case law.