the codecivil: ancient and modern

5 The immediate sources used by the authors of the 1804 Code civil were the traditional French common law of the eighteenth century, which was an amalgam of learned and customary law, some of which was very old; and secondly the innovations made during the Revolution.

The distant sources of French law (yet to be examined) were (i) the customs, in their codified and annotated form, and in particular the Coutume de Paris, which enjoyed great prestige throughout France. The compilers of the Code civil made conscious efforts to treat customs and Roman law on an even footing, and they systematically gave preference to formulations conforming to â€?natural reason’, but customary law was the most important source of the Code, (ii) Roman law as systematized by Domat (d. 1696),^{[6] [7] and, to a lesser extent, canon law. Roman law was the basis Ofjurisprudence, but it was also the law practised in the south, the region of written law (pays de droit ecrif). The influence of Roman law was particularly marked in the law of obligations, (iii) The law of the three great royal ordinances of 1731 to 1747, which were in fact partial codifications of important areas of law. These ordinances had been the work of Henri Franςois Daguesseau (d. 1751), chancellor of Louis XV.’ (iv) The case law of the parlements, especially the Parlement de Paris.}

The compilers of the Code civil also consulted traditional legal writers, notably Franςois Bourjon (d.

Another fundamental feature of the Code is its positivism, which was to mark the Exegetical School and exercise a predominant influence right through the nineteenth century. The following points allow this aspect of the Code to be appreciated. There is no general theoretical introduction to the Code, setting out basic principles, a general outline of the contents, and legal definitions. And the first six articles of the Code do not make up for this deficiency in any way. Yet it would not have been in the least difficult to provide such an introduction: Portalis’ Discours preliminaire would have been emi­nently suitable. The absence is therefore a matter of conscious choice; and this was expressly stated at the Tribunat. Reference was made to the Prussian codification, which was thought to be excessi­vely theoretical. The Code was to be conceived first and foremost as a positive legal text, and any doctrinal excess must be avoided; the terms of the statute must not become obscured by theories and lectures.

The idealism or utopianism of the revolutionary period had disappeared. The Code civil bears witness to a sober and realistic reaction. After ten years of the revolutionary regime, the illusion of a new society of honest citizens, in which rules of law were replaced by moral prescriptions enjoining civic conduct, and courts and judg­ments by friendly conciliation, had been shattered. The aspiration to bring about instant general reforms had been expressed by Camba- ceres in 1793, when he declared a desire �to change everything at once in the schools, in the morals, the customs, the spirits, and in the statutes of a great people’. The Code Napoleon re-established the law and the courts in their full rigour, but the system was now more rational and its functioning more calculable and predictable than under the ancien regime.

The elimination of natural law as a source of positive law belongs in this same line of thought. In the eighteenth century the law of reason (Vemunftsrecht) had been a powerful instrument in the strug­gle against the old political regime. During the Revolution, natural law was constantly invoked to justify new rules and new systems. In Portalis’ theoretical work natural law plays a very important part. The Code civil, on the other hand, rejects all borrowing from natural law: from now on the established order was the Code, and all reference to natural law, a perpetual source of inspiration for those opposing the status quo, was out of order.

So far as liberation and emancipation are concerned, the effect of the Code was limited. It is true that many inequalities and burdens (especially feudal ones) were abolished, but the 1804 Code intro­duced new ones. For instance, discrimination against women, es­pecially married women: this can be seen particularly in the restrictions on the right of women to sit on the family council or to appear as witnesses, in a wife’s subjection to the authority of her husband and her obligation to adhere to him, as well as in the reservation to the husband of the right to administer his wife’s property. There was also discrimination against workers, as the system of workers’ files (Iivrets (Fouvriers) shows. The rule in article 1781 of the Code was particularly unfavourable: in the case of a dispute between employer and employee on a question of pay­ment or of reciprocal obligation, the employer was believed on his word.¹⁰