7.7.1 The Reception of Roman Law in France

In the period between the sixth and the ninth centuries, three bodies of law applied in France: under the system of the personality of the laws, the Germanic sections of the population were governed by their own laws and customs, whilst the Roman inhabitants of the country continued to live according to Roman law; at the same time, everyone in France (irrespective of ethnic origin) was bound by the laws promulgated by the Frankish monarchs.

In the South of France, the land of written law, the common law of the region was essentially Roman law (notwithstanding local differences). The Roman law of Justinian was rapidly received in Southern France and accepted as the living law of the land.

In the northern regions of France, the country of customary law, a multitude of Germanic customs were in force. Some of these customs applied over a wider area (coutumes generales), whilst others were confined to a particular town or locality (coutumes locales)—there were 60 general customs and 300 special or local customs. In this part of France, Roman law was regarded as a supplementary system invoked when the customary law was silent or ambiguous. Moreover, in certain areas of the law (such as the law of contracts and the law of obligations) the Roman system had been adopted and perceived as superior to customary law as well as better suited for tackling many new problems that emerged from the expansion of economic activity.

The administration of justice fell in the province of regional judicial and legislative bodies referred to as Parliaments (Parlements). In the country of cus­tomary law, the case law of the Parliament in Paris acquired special significance. Advocates attached to this body fostered legal development by means of an intensive literary activity that pertained, largely, to the study of case law.^[743]

From the beginning of the thirteenth century, the customs of many regions of Northern France began to be recorded.

In order to reduce the confusion caused by the multiplicity of customs, King Charles VII ordered the compilation of the customs of all regions of France in his Ordinance of Montils-les-Tours in 1453. Although the direction proved largely ineffectual, it was repeated by subsequent monarchs and most of the customary law had been committed to writing by the end of the sixteenth century. The consoli­dation of customary law through its official publication precluded the wholesale reception of Roman law in Northern France, although elements of Roman legal doctrine entered the fixed body of customary law by way of interpretation. More­over, Roman law continued to apply in areas of private law on which customary law was silent. This interaction of Roman and customary sources infused the law that prevailed in Northern France with a distinctive character.

Although the publication of the customs removed much of the confusion caused by local differences, legal unity was certainly not achieved. In addition to the differences between Northern and Southern France, considerable regional diversity persisted even within each of the main territorial divisions.

In the course of the 150 years prior to the enactment of the French Civil Code, the academic study of Roman law reached a climax—a development associated with the writings of jurists such as Jean Domat (1625-1695) and Robert Joseph Pothier (1699-1772).

Domat was born in Clermont-Ferrand, where he served as judge until 1681. His best-known work is his Les loix civiles dans leur ordre naturel, published in three volumes between the years 1689 and 1694. After an examination of the entire recorded body of legal material (droit ecrit) of his region (Auvergne), Domat concluded that it was permeated by an internal logic and rationality that pointed to the existence of certain universal or immutable legal principles (loix immuables). He noted that these natural principles are reflected best in the norms of private law; public law, on the other hand, is composed to a much larger extent of statutory laws of a changeable or arbitrary character (loix arbitraries). Domat asserted that the general principles of Roman law, as embodied in the codification of Justinian, met the criteria of the loix immuables and could be ascribed the status of a system. He argued, further, that contemporary French language was capable of expressing this system in a clear and precise way.^[744]

Pothier was born and studied in Orleans, where he served as judge and, from 1749, as university professor. His first major work, La coutume d’Orle'ans avec des observations nouvelles, published in 1740,^[745] was concerned with the customary law of his hometown. His next important work was a comprehensive treatise on Roman private law, titled Pandectae justineaneae in novum ordinem digestae cum legibus codicis et novellae (1748-1752). This was followed by a series of works on a diversity of legal institutions.^[746] In his writings, Pothier sought to overcome the problems for legal practice caused by the fragmentation of the law in France by means of a systematic restatement of fundamental Roman law concepts and princi­ples.^[747] In this way he contributed a great deal to the process of unification of private law in France.^[748]