THE COURTS AND PROCEDURE

General aspects

66 The courts and their procedure did not escape the criticism levelled at the learned law of the ancien regime. It was directed mainly at the random confusion of courts which had grown up.

²5 See above, section 51.

Enlightenment, natural law and the modem codes 129 ment is therefore easy to imagine. They were driven by revolu­tionary zeal and inspired by their confidence in the natural goodness of man (under the influence especially of Rousseau). Some actually went so far as to advocate the abolition of all formal judicial procedure: the good citizens estranged by a dispute would be reconciled by arbiters or justices of the peace, without any of the formalities and rigorous procedural rules of the ancien regime. Various experiments were undertaken in the regime Ofintermediate law, but of these only the preliminary of conciliation survived,^[26] and even it turned out to be a mere formality without much practical value, since in practice people turned to the courts only when their disputes could not be resolved amicably.

The labyrinth of tribunals, courts of justice and parlements with their overlapping jurisdictions had to be abolished and replaced nationally and for the citizens as a whole by a rational and uniform hierarchy of courts. This was what Joseph II attempted in the Austrian Netherlands: the abolition of a situation inherited from the Middle Ages and its replacement with a new â€?pyramidal’ system of courts.²? Similarly the whole court structure was abolished at the beginning of the Revolution in 1790-1 and replaced with one which has constituted the basis of court organization in France and Belgium to the present day. In private law jurisdictions (apart from the commercial courts) the system provided for one justice of the peace for each canton; one court of first instance for each arrondisse­ment', a court of appeal for each of twenty-seven jurisdictions; a single Cour de Cassation, to see that the laws were uniformly applied. No international, European or universal authority superior to the system of national courts was envisaged.

Legal practice had to become more democratic: if justice was not to be entrusted to the people, it must at least be brought closer to them. The most radical method was to elect judges under a temporary mandate (a system still in use in some states of the United States of America) and to abandon all qualifications for judicial office, in particular the requirement for a law degree. For a very short period, the French Revolution employed such a system (Con-

*’ See below, Section 68.

Stitution of 1791, in, 2 and 5) but the popular courts were suppressed under Napoleon. The Constitution of Year VIII (13 December 1799) readopted the traditional conservative system of professional judges, who had been educated in law and appointed for life by the first consul.

Statute: the sole source of law

67 The monopoly of statute as a source of law had to be ensured: judges were given instructions to keep strictly to their task and to refrain from all legislative intervention. This is to be understood in connexion with the doctrine of separation of powers, as defended by Montesquieu.²⁹ Robespierre would actually have been happy to see the term â€?case law’ disappear from the French language, since â€?in a state having a constitution and legislation, the case law of courts is nothing other than statute’. Article 5 of the Code civil of 1804 provides: â€?Judges are prohibited from pronouncing general regula­tory dispositions in cases submitted to them.’ The subordination of judges to statute can also be seen in the requirement that they give reasons for, and the statutory basis of, their decisions.³⁰ In the old law, by contrast, the judge who gave reasons for his decisions (as Wielant had observed) was considered a fool. But what if the text of a statute was obscure? Was each judge to be left the freedom to interpret the statute according to taste? The reformers thought not: their preferred solution would have been to reserve necessary interpretation to the legislator himself.³' But the procedure adopted by the Constituante of 1790, ref ere au Iegislatif (â€?referral to the

^a8 Statute of 16-24 August 1790 on the court system, t.π art. 2, â€?The sale of judicial office is abolished for ever, judges shall do justice freely and shall be paid by the state.’

²â€™ Art. 16 of the Declaration des droits de Phomme et du citoyen of 26 August 1789 reads, â€?Any society in which there is no guarantee of rights and no separation of powers has no Constitution.’ The separation of powers has also to ensure the independence of the judiciary from the executive. J. P. A.

3° Constitution of Year Hl, art. 208; Belgian Constitution of 1831, art. 97.

3^l The statute of 16-24 August 1790 required the courts to approach the legislature at any time when they thought it necessary to interpret a statute. legislature’), was less radical. A single Tribunal de Cassations² _was created, to nullify judgments which had misapplied the law and remit them to another court of the same instance. Where three tribunals persisted in judging to the same effect, the Tribunal de Cassation had to submit the question to the legislative assembly to obtain a legislative statute, which was then imposed on the judiciary at large. This system was also introduced into Belgium, and was confirmed after the revolution of 1830 by the organic law of 1832 which created the Belgian Cour de Cassation. Referral to the legislature was abolished only in 1865, when it was replaced by the current system under which, when two lower courts have given judgments to the same effect but their judgment has each time been annulled, the lower court to which the case is then remitted must follow the decision in law of the Cour de Cassation. This system finally brought judicial powers of statutory interpretation under control.

The modern codes

68 Reforms were also advocated in civil procedure. The rules of procedure were to be codified to ensure certainty and clarity, qualities which were completely lacking in the weighty and obscure volumes of Roman-canonical procedural jurisprudence.³³ The new codes made substantial changes in procedure, which brought justice closer to the citizens or, in other words, gave the administration of justice a more humane appearance. Procedure had to be public (apart from the judge’s deliberations) and oral, which reduced both length and costs.

s’ This court, which was set up by decree dated 27 November - 1 December 1790 to annul all formally defective procedure and all judgments contrary to the law, had antecedents in the ancien regime in the case law of the Conseil du Roi for which rules had already been made in ¹73θ∙

33 The â€?Code Louis' (see above, section 49) was a notable exception in the European law of procedure. perfectly capable of defending his own interests.?⁴ Juries on the English model were to be introduced, so that every citizen would be judged by his fellow citizens.??

The abolition of advocates was very short-lived. The proposal for a jury in civil cases was rejected by the Constituante after interven­tion by Tronchet, who maintained that in civil cases questions of fact could not be distinguished from questions of law. But the reformers were almost unanimous in defending the old V'erhandlungsmaxime. ?⁶ The exception to the rule was Frederick the Great who, as an enlightened despot, thought it the duty of the court to seek out the truth, even if this involved the judge in investigation beyond the submissions made by the parties. His divergent view of procedure rested on the principles of the Instruktionsmaxime and the Offizial- maxime, in which the officium iudicis is the guiding principle of civil procedure. The task of the judge is to protect the citizen, and to convince himself on the merits of the case, independently of the allegations of parties, even if they say nothing or make mistakes. Cases are investigated by an Instruent appointed by the court, who may be compared with the juge d’instruction of criminal law.

The principal codes of civil procedure of the time were the code of

w This was one of the reforms of the Declaration des droits de l^,homme as well as of the Constitutions of 1791 and 1795. The abolition of advocates was part of the struggle against the revival of the privileges of the ancien regime. It did not last long: the Ordre des Avocats was re-established by Napoleon in 1804, with the requirement that its members be graduates in law.

® In 1790 E.-J. Sieyes had already proposed to the Constituante that all civil and criminal cases should be decided by jury. His proposal had met with results in practice only in criminal law. As Robespierre observed to the Convention in 1793, the difference between juries and non-professional judges was merely one of name.

36 i.e. where procedure is in the hands of the parties, and the decision of the court is based on the submissions of the parties and the witnesses they have cited.

37 Traditional advocates were regarded as mercenaries.

Frederick II in Prussia^⁸ that of Napoieon in France, and in Austria the Allgemeine Gerichtsordnung of Joseph II, which was pro­mulgated in 1781 for the territories of central Europe under Habs­burg rule and was also important for the Austrian Netherlands. The Gerichtsordnung was a systematic and comprehensive codification of procedural law. It was also a statutory modernization of the law in the spirit of the Enlightenment. Where it preserved traditional procedures, the Gerichtsordnung was a codification of Roman-canoni­cal procedure, while its modern characteristics derived from com­parison with other European systems, from the ideas of the authors of the Enlightenment, and from the work of Montesquieu, who was often quoted by the codification commission. Some of the new experiments with oral procedure were developed more systemati­cally in later legislation. But radical reform of the Austrian law of procedure came only around 1895, with the introduction of the Zwilprozessordnung prepared by Professor F. Klein. In the Nether­lands, Joseph II attempted a complete reform of the court system, by abolishing the existing courts in 1787 and replacing them with a single pyramidal court structure. His reform envisaged sixty-three regional courts of first instance, two courts of appeal, at Brussels and Luxembourg, and a single sovereign council sitting at Brussels. The courts of appeal were to hear appeals, while the sovereign council would be competent to review judgments. This system already foreshadowed the contemporary one. In the time of Joseph II, however, this direct assault on tradition and vested interests pro­voked the Brabanςon revolution in October 1789, and the authori­ties found themselves compelled to reinstate the old jurisdictions, which survived until the French occupation in 1794.

As part of his policy, Joseph II had in Brussels in 1786 promul­gated a Reglement de procedure civile. This contained 451 articles and was close to the Austrian model. It provided in particular that only graduates in law could practise as advocates. Judges were to apply the dispositions of the Reglement strictly: they were prohibited from diverting from it by appealing to the â€?spirit of the law’, â€?praetorian equity’, â€?contrary custom’ or â€?any other pretext whatsoever’. Ajudge who allowed a case to languish for long had to pay damages and s∙ This was largely composed by von Carmer and Svarez, who have already been mentioned.

It was revised by the Allgemeine Gerichtsordnungfur die preussischen Staaten (1793) of Frederick- William II and an ordinance of 1799. Ordinances of 1843 and 1846 took up again with traditional practice. interest. Where there was a gap in a statute, the court was to judge by analogy or, failing that, to address itself to the sovereign council of justice which was to be set up in Brussels. The preparatory work for the Reglement had been done in Brussels from 1782, but the draft worked out in the Netherlands was rejected by the Viennese authorities and replaced by a more â€?enlightened’ code, which was already in use in the Habsburg territories in North Italy. To the government of Joseph II, the draft which was rejected was too traditional and still too attached to local customs.³⁹

In conclusion it should be recalled that the procedural codes of the Enlightenment, or at least those which lasted some time, were decidedly conservative. In France the codification reiterated the essential elements of the Ordonnance of 1667, which had shown itself to be practical and had managed to avoid the excesses of Roman- canonical doctrine. The Gerichtsordnung of 1781 preserved the essence of�common procedure’ (gemetner Prozess), although it revised some aspects in a modern light. Yet in some regions new ideas initially had no effect on procedure. In Spain, justice continued to be admin­istered according to the medieval learned procedure; and England maintained its medieval common-law procedure.