POTHIER AND THE FRENCH CIVIL CODE

The most famous product of the codification movement did not have the long period of gestation which characterised the Prussian and Austrian codes. The enactment of a civil code was one of the aims of the French Revolution and those who sponsored it originally had exactly opposite aims to those of Frederick the Great.

Fortunately the compilers of the French Code had a useful resource to hand in the works of a conspicuously unrevolutionary product of the ancien regime, a hereditary magistrate from Orleans named Robert Joseph Pothier (1699—1772). He had done much of the detailed prelim­inary work necessary for the preparation of a civil code for, as a young man, he had set himself the task of reducing both the Roman and the customary laws to a rational and usable order. He began with the problem of Justinian's Digest. He retained the original titles but re­arranged all the fragments within each title in a logical order, supplying for each title an introduction and linking passages fitting the fragments together. Pothier's concern was primarily with the Roman law of antiq­uity but he set out the texts as illustrating rational principles of general validity. When he came to the last title on general rules, he increased the number of rules from Justinian's 211 to 960, and arranged them under five heads: general rules, rules applying to persons, things and actions, and rules of public law.

At this time he was appointed royal professor of French law in the University of Orleans and turned from Roman law, expounded in Latin, to customary law, expounded in French. In his Coutumes d’Orleans, published in 1761, he took up the ordering of the customary law where Dumoulin had left it. Comparing the customs of Orleans with the other main customs, he provided in effect an introduction to French customary law in general. He then moved from the general to the particular and wrote a series of treatises on all the main parts of private law, weaving the Roman and customary elements together. The most famous was the Traite des Obligations, the material of which was mainly derived from Roman law. General propositions of law were always supported by illu­minating illustrations, showing the operation of the rule in practice. Pothier's Obligations was quickly translated into other languages and became the model for legal treatises throughout Europe in the nine­teenth century.

The Code civil, enacted in 1804, is concerned with civil law in the sense of the matters covered by the Institutional scheme but omits the topics dealt with by the Royal Ordinances. It had to be supplemented by four other codes dealing with civil procedure, criminal law, criminal pro­cedure and commercial law. The compilers of the Code civil relied heavily on Pothier, especially in the section on Obligations, and to a lesser extent on Domat. There are, to be sure, customary elements in the French Code, such as the principle that possession vaut titre. But the arti­cles stemming ultimately from Roman law predominate and they are collected in a shadowy version of the Institutional scheme. The articles are expressed in clear and succinct language, comprehensible to the ordinary man. They are collected into three books of unequal size, the first dealing with persons and the second with things, ownership and modifications of ownership. The third book, which contains over 1,500 of the 2,281 articles, is ostensibly devoted to different ways of acquiring ownership and contains all rules not appropriate for the first two books. Although amended in detail, the French Code is still in force.

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