From Assembly-Based Government to Executive Government
15.2.1 Napoleon and State Reform
The manner in which Napoleon consolidated the French state was very unlike what occurred in the United States of America; where the latter was based firmly upon a founding constitution, Bonaparte turned out constitutions after the fact to legitimize and legalize the succession of regimes over which he ruled.
One of the most momentous consequences of the French Revolution was that, by destroying the entire institutional order of the Ancien Regime, it wiped out all the limits which had been placed on absolute monarchy, passed down by the traditions of the French polity. Thus, in the end the revolutionary process served to accentuate the power of the state in France. This progression reached its peak with Napoleon, who not only placed all the state’s bodies and divisions under his power, but also created an administrative apparatus so solid that even today it continues to serve as the framework for the French government. Napoleon created what could be called an administrative state, a stable and permanent organization able to withstand the constant tides of change, as those in power enjoyed a series of privileges that afforded them stability by isolating and sparing them from the vicissitudes of politics. This principle would have an impact throughout Europe, as Napoleonic imperialism transformed the Ancien Regime systems in most of the countries he occupied, forcing them to abandon their absolute monarchies.[787]
15.2.2 The Extreme Centralization of the New Administrative State
The suspension of elections and the consolidation of the central government’s absolute power impinged upon the process of “administrative reform”[788] that Bonaparte implemented in February of 1800. Unlike the administrative regime established by the Constituent Assembly, according to which civil servants were elected (which afforded them great autonomy), Bonaparte ordered that public servants be appointed by the government and remain totally answerable to it.
In each department, a prefect and several general advisors were named, the districts became arrondissements (“rounded offs”) and subprefects, with arrondissement ministers placed at the head of each. In every municipality (commune), there was a mayor (maire) and several “municipal councilors”. Thanks to Bonaparte, the administration of the state was structured in a perfectly hierarchical pyramid, which made possible a degree of centralization far greater than that under the Ancien Reegime, as in the era of absolute monarchy the intendants had to take into consideration the opinions and functions of the privileged bodies (the Parlements, provincial estates, Justice and Tax officials). In this way, France became a country under administrative tutelage (Bergeron 1990, 23).15.2.3 Judicial Reform and the Creation of Administrative Jurisdiction
Also very important was the judicial reform Bonaparte introduced in March of 1800, which profoundly modified the regime previously enacted by the Constituent Assembly. Under the new system, judges were not elected but rather appointed by the first consul, as were state attorneys (“government commissioners” who performed the same function as the old “revolutionary prosecutors”). The two differed because the judges, once named, were irremovable, whereas the state attorneys could be dismissed. In addition, Bonaparte created 29 Courts of Appeal.[789]
The most important reform of the judiciary was the creation a special jurisdiction for Napoleon’s civil servants. This was the origin of the “Administrative jurisdiction”, with its special courts and prefecture councils, and whose sentences could be appealed before the very State Council. This internal and privileged jurisdictional channel kept the French state’s civil servants from going before ordinary judges, as most of them came from the Ancien Regime judicial system. Thus, the new regime had its own, new judges who followed a specific procedure, making it possible to create a specific body of laws through jurisprudence, yielding the Droit administratif, which featured and observed its very own logic within the rule of law system (Lorente 2012, 296). As a result, even today France can continue to be administrated without a central government to oversee it, as the state administration continues to be quite effectively divorced and shielded from the effects of political change and turmoil.[790] This was, without any doubt, Napoleon’s greatest contribution to public contemporary law, his “longest-lasting legacy” (Woolf 1992, 95), as the efficacy of the “administrative state” model would lead to its adoption by many European nations.[791]
15.3