THE CODE CIVIL AND THE SCHOOL OF EXEGESIS

The Greek word �exegesis’ meant �explanation of authoritative but difficult texts’, such as the pronouncements of the oracle. From classical Greek the term entered Christian theology, where it indicated the word-for-word explanation and elucidation of HolyWrit: the exegete was an interpreter of God’s word (�biblical exegesis’).

Towards the end of the century the restricted and narrow approach of the School was criticized by the Scientific School, which felt that other sources besides the will of the legislator were important and that lawyers should be aware of the wider social context.^[77] The succession of the Exegetical by the Scientific School is in some ways comparable to what happened in the Middle Ages, when the glossators of Roman law were followed by the commentators, who dared to look beyond the confines of the very words in Justinian’s lawbook and give their attention to feudal customs and urban statutes.

At first the new Civil Code was heralded as the fruit of reason itself, and a lawbook of transnational and even universal signif­icance. These thoughts not only circulated among the French, but even German scholars believed that the Civil Code, being based on both Roman and Germanic principles, could �claim universal validity’ and lead to a �rational development of the law on historical and national foundations’. German rejection of the Napoleonic Code as �foreign law’ was therefore unjusti­fied, according to, for example, Heinrich Zoepfl, a professor in Heidelberg, in an article entitled �The German element in the Code Napoleon’.^[78] The discussion was not merely academic, because the Napoleonic Code was valid in German provinces to the west of the Rhine and, after French domination ended, the question arose whether this French lawbook should be re­tained, or replaced by German law. Defenders of the Code used its universality and its conformity with Roman and natural law as arguments against abolition.^[79]

These bombastic claims should, however, not be taken too seriously as, far from being some sort of revelation from the goddess of reason, the Code of 1804 was the fruit of a protracted wrangle and party political in-fighting. How political Napoleon’s Code was had been made crystal clear when the First Con­sul proceeded to a minor coup d’etat to eliminate the most outspoken heirs of the Revolution from the Tribunate in order to impose �his’ code at his own dictatorial pace.

It was, however, several years earlier, under the Directoire, that the most passionate debate on the new civil code had been con­ducted, when Cambaceres’s Third Project set the conservatives against the heirs of the regicides of the Convention. When one reads the speeches in the Conseil des Cinq-Cents and the Conseil des Anciens, the Parliament of the Directoire, one is amazed to find that �right’ and �left’ debated what was, after all, only a civil code and not a new constitution along such outspoken party lines.

Divorce was a great bone of contention (particularly divorce by mutual consent). To the �left’ it was a precious and lasting achievement of the Revolution and a logical outcome of the latter’s ideology of liberation from various forms of lifelong constraint: they pleaded for individual freedom and attacked �sacerdotal errors’. To the �right’ divorce by mutual consent meant the trivialization of marriage, which was the cornerstone of human society. It constituted a �radical subversion of the social body’ and incitement to �legal prostitution’. According to one member of the Conseil des Cinq-Cents divorce led to libertinage and debauche and he posed the question: �what can be more immoral than to allow a man to change his wife like changing his clothes, and a woman to change her husband like a hat?’

Even Rousseau was dragged into the debate and blamed for every evil for having described �an imaginary state from which possibly derived all the imaginative and absurd opinions which followed the Revolution’. These politicians demanded a revision of the law in the name of the �moral order’ and protested that the Revolution had produced �too many innovations’, some of which were �fatal to morality and society’.^[80]

A few months later, in August 1797, the debate was contin­ued in the Conseil des Anciens, where Portalis made a memorable speech in defence of marriage, �a purely natural act, regulated by the civil law and blessed or sanctified by religion’, �instituted by the Creator’ and �by its destination a perpetual contract’. Divorce could, however, not be forbidden, as it was based on re­ligious freedom, but it should only be tolerated and not encour­aged by the law.

The debate on the status of illegitimate children was equally charged with political overtones: the first question in Cam- baceres’s Third Project for a civil code to be discussed in the Conseil des Cinq-Cents concerned the continuation of the liberal legislation of the Convention on the droit de famille of illegitimate children and in particular their equal inheritance rights. The latter were now said to �favour the friends of the Revolution’, which immediately politicized the discussion on the law of per­sons in the projected civil code. It soon became clear, however, that in 1796 the �friends of the Revolution’ were in full retreat in the Conseil des Cinq-Cents and that a majority was ready to reject the liberal approach as �subversive of all the principles of morals and the social order’: even a proposal to grant illegiti­mate children one-third of the legitimate portion was rejected by parliamentarians who wanted to deny them any part of the parents’ inheritance, in order to reinstate �the conjugal union in its primitive purity’, and the upshot of the debate was a re­turn to the norms of the Ancien Regime, i.e. the entitlement of the illegitimate offspring to alimentation instead of a real part of the inheritance.

That the deliberations on Cambaceres’s Project, presented in 1796 and containing over ι,000 articles, led only to discussion and not promulgation, should not obscure the fact that the quick results obtained by Napoleon a few years later owed a good deal to the spadework of the Conseil des Cinq-Cents and the Conseil des Anciens and their lawyer-politicians — a fact that was readily â€?forgotten’ after ι 804. The Civil Code of that year was a symbol of national unity and was extolled as a work of genius, inspired by a man of genius, quite different from Cambaceres’s Projects, which were rejected as the products of â€?an incoherent and mon­strous legislation’.^[83] Napoleon’s Code, it should be noted, was the work, not of parliament but of the government. This, together with the sincere personal interest of the First Consul, meant that its elaboration proceeded apace, unhindered by endless debates. Four lawyers were appointed to prepare a draft code in the Year VIII, the very year of Napoleon’s coup d’etat of Brumaire. Their work, started in August ι 800, was ready by January 1801.

The text was submitted to the judiciary, which made no remarks of any importance. The project was then sent to the Council of State, where it was subjected to a profound examination during a period of almost three years and ι 07 sessions, fifty-five of which were presided over by Napoleon.

As soon as that Code was published, all this strife was forgot­ten. The paix bourgeoise had descended upon France and a holy book had fallen from heaven. It contained the law, the whole law and nothing but the law. It symbolized peace, stability and unity. It was conservative and, as far as the law of persons was concerned, even reactionary, but it corresponded to the mood of the nation, which had turned its back on the turmoil of the recent past. It was on this firm rock that the Exegetical School was to be built.

Its protagonists were well aware that the Code suited the po­litical climate and said so in so many words. Thus we read in J. B. V Proudhon’s Cours de droitfrancais of 1810 that the Code â€?is a completely new body, consisting of the wisest maxims... all methodically coordinated and linked in a system that suits our political situation’ (convenable a notre etat politique).³

It was in order to safeguard the new etat politique, and the new bourgeois social order, that the Civil Code had to be defended against all possible forms of contamination, by Roman law, canon law, ancient customs and particularly natural law. Having played its role in the subversion of the Ancien Regime, this Vernunftrecht, the law of reason, was now safely put away: France had had enough subversion, and natural law was only a dream which had run its course. After all, the norms of natural law are nowhere to be found in writing, so where could a judge possibly trace them?³²

Hence the two principal tenets of the School, i.e. that the whole law is in the Code and that the literal explanation of its text is the only acceptable approach. Neither jurists nor judges should venture outside its safe parameters. As far as the learned commentaries were concerned, Napoleon — following in the footsteps of Justinian - would have preferred that there were none. This was, of course, asking too much of the learned jurists who had been writing treatises for centuries and could not suddenly give up their dearest vocation. Nor did they wait many years to go to work. The first of the four volumes of Jacques Maleville’s Analyse raisonn.ee de la discussion du Code civil was pub­lished as early as ι 805;³³ it was said that when Napoleon was handed a copy, he exclaimed: â€?a commentary: my Code is lost’. Maleville’s first volume was followed in 1808 by Delvincourt’s Institutes de droit civilfranςais and many others, which had in com­mon their absolute respect for the Code, its order of articles and its terminology, and the absence of personal interpreta­tion, philosophical reflexion or criticism, which those in power would not have tolerated. Legal history, in particular, had noth­ing to do with the teaching of the Faculties, nor did compar­ative law. Proudhon, professor and dean in the Law Faculty of Rennes, who died in 1838, expressed the feeling in terms that seem absurd in their starkness. According to him the Code was un corps entierement neuf so what was the use of ancient an­tecedents? - and the principles of the law should be discovered

³² Thus the rhetorical question posed by Francois Laurent, one of the main professors of the Exegetical School, as quoted in Bouckaert, De exegetische school, 159.

³³ (Paris, ι 805-14).

en comparant le code avec lui-meme - so what was the use of compar­ative law?^[86]

As far as the judges were concerned, some recent research has thrown new light on the subject. There is, of course, no lack of judgments which expressly proclaim the duty of the courts to apply the law. Thus, in 1836 the high court of Algiers (which had recently come under French jurisdiction) confirmed �that it is the duty of the judges to apply existing legislation, even if there are lacunae, and that it belongs solely to the legislative power to examine and eliminate them.’^[87]

Similarly, some judges stated very clearly that they applied the Code and nothing else. Ajudgment of 7 March 1811 by the court of Genoa, then under French jurisdiction, proclaims that �Since, according to art. 7 of the law of 30 Ventose of the Year XII, all ancient laws, customs, regulations and statutes have ceased having force of law in the matters encompassed by the Code Napoleon, it is only in the latter’s letter and meaning (esprit) that one ought to discover the guiding principles for the decisions [ofthe court].’^[88]

To appreciate correctly the meaning of the Code the judges naturally consulted the preparatory texts. Only the original intent was relevant and not new opinions or values entertained by the courts. Direct references to the personal will of Napoleon were sometimes used to strengthen judgments that might seem severe. Thus the imperial court of Turin strictly applied art. 214 of the Civil Code concerning the wife’s duty to live in her husband’s house and referred to Napoleon himself in the following terms.

�That is why the emperor, when during the discussion of this article in the Council of State the question arose whether the wife could even be forced to follow her husband outside the territory of the empire and in the colonies, raised the voice of his admirable wisdom against the opposite suggestion, maintaining that the obligation of the wife to follow her husband was general and absolute.’^[89]

In fact, however, not all judges accepted this robot-like role. There is no lack of judgements which refer to �natural law’ or �natural equity’ (sometimes quoting the Digest as additional au­thority) and take the view that it was not the legislator’s intent to violate the eternal rules of human or civilized behaviour. Thus a judgement of 14 February 1811 by the court of Poitiers declares that parental authority �is a right based on nature... and that the civil laws have never been able to take away the rights which parents hold particularly from nature’. And the text goes on to state that �the right to educate one’s children... has its origin in natural law and one should, in this respect, not easily pre­sume that the civil law wanted to deprive fathers and mothers of it, unless this was expressly stated’.^[90] The reader will, inciden­tally, be reminded of the traditional conviction of English judges that it cannot be the intention of Parliament to enact statutes against the common law, unless it expressly says so (a very rare occurrence indeed).

Some French judges were even bold enough to refer to an­cient customs and ordinances, and even to arrets de reglement, abhorred by the Revolution.^[91] Thus a judgement of 15 May 1824 of the royal court of Grenoble openly referred to Roman law and the older doctrine and declared â€?that the Civil Code had not introduced new law’ (it concerned the revocation of certain alienations fraudulently agreed to by a debtor to the detriment of his creditors).^[92] Similarly, on ι 2 July ι 831, the court of Nimes, in a case concerning the restitution of a dowry, states that â€?the Civil Code has in no way innovated as far as the old rule is concerned, based on the elementary principles of the dotal system’.^[93] Ajudgement of 27 June 1810 by the court of Nimes invokes the â€?constant doctrine within the jurisdiction of the Parlement of Toulouse’. Ajudgement of ι December 1830 of the court of Grenoble maintains that when the Civil Code is silent the judges should apply â€?the ancient principles’, and quotes the Digest and a royal ordinance of 1735. On 17 July ι 830 the same court invoked the authority of three arrets de reglement of the Parlement of Grenoble of 23 August 1719, 2 April 1744 and 12 July 1754 in a case concerning a water mill.^[94]

Occasionally the judges pushed their boldness one step too far and gave sentences that were blatantly contra legem. Thus the royal court of Lyon, on 25 February ι 836, gave sentence against the law of Ventose of the Year XI arguing that â€?under the ancient legislation, a usage, confirmed by several edicts or particular regulations, authorized the drafting of notarial acts by a single notary, on condition that another notary supplied a second sig­nature’. A few years later the Court of Cassation felt obliged to annul this sentence, however reasonable, and whatever ancient legislation and usage had said about it.^[95]