The Codification of Civil Law in France

At the time of the French Revolution (1789) there prevailed in France two great bodies of law: the customary law in the North with Germanic origins that was deeply influenced, and in some areas replaced, by Roman law; and the written law of the South based on Roman law.

At the same time, royal ordinances applied throughout the country.^{^[816]} Although a considerable degree of uniformity had been attained within each of these systems, there still existed considerable regional differences within each of the main territorial divisions. The French Revolution ushered in a new phase in French history, underpinned by new philosophical ideas concerning law and its role in society. The Revolution was generally hostile towards the past and treated both Roman law and customary law with suspicion. Frequent demands were voiced by the deputies of the National Convention for the construction of a code of law that would be simple, democratic and accessible to every citizen and whose principles would be derived from reason alone.^{^[817]} In the eyes of the revolutionaries, the main elements that had to be eliminated were the feudal system and the control of most of the land by few people; social, political and economic inequalities; and royal and Church despotism. The revolutionary legislation thus abolished feudal rights, the procedural privileges of the clergy and nobility, and most future interests in property; confiscated the estates of the Church; abolished the division of people into social classes; removed the civil disabilities of women, illegitimate children and aliens; and secularized marriage.^{^[818]} However, the post-revolutionary period featured a sharp reaction against the excesses of the Revolution and this is reflected in the law of that period.^{^[819]} Thus, the legislation of Napoleon retained much of the old law and only some aspects were apparently influenced by revolutionary ideas.

The most important changes occurred in the area of the law of property, where there is no trace of feudal institutions (such as tenure). In other areas of the law, such as family law, we notice a clear departure from revolutionary ideas and legislation.

class=a5 style='text-indent:18.0pt'>The French Civil Code of 1804 was drafted by a commission of four eminent jurists: Tronchet, the President of the Court of Cassation and former defence counsel for King Louis XVI; Portalis, a lawyer and provincial administrator at Aix-en-Provence and a close supporter of Napoleon; Bigot de Preameneau, government commissioner for the Tribunal de cassation and former lawyer at the Parliament in Rennes; and Maleville, formerly a lawyer at the Parliament in Bordeaux and, later, judge at the Court of Cassation.^{^[820]} The chief aim of the commissioners was to fuse the Roman and customary laws into one coherent system that would also embody those ideas of the Revolution that were still approved by public opinion.^{^[821]} The three ideological pillars of the Code were private property, freedom of contract and the patriarchal family. The position adopted was that the primary role of the state was to protect private property, secure the enforcement of legally formed contracts and warrant the autonomy of the family. With respect to private property, the Code consolidated the rejection of feudalism and its institutions achieved by the French Revolution. Through private law devices, such as the imposition of limitations on the freedom of testation, the drafters of the Code sought to break up the estates of the once powerful landowners. The formal division of the Code into three parts—Persons, Property and the Different Ways of Acquiring Property—was similar to that adopted by the drafters of Justinian’s Institutes. Each part or book is divided into titles, such as Enjoyment and Loss of Civil Rights, Marriage, Divorce, Domicile and Adoptions.

These are subdivided into chapters and, in several instances, into sections. Book One covers matters such as marriage, divorce, the status of minors, guardianship and domicile; Book Two deals with property, usufruct and servitudes; and Book Three includes diverse matters such as wills and intestate succession, donations, contracts, torts, matrimonial property settlements, sale, lease, partnership, mortgages, special contracts and such like. Certain parts of the Code (such as that addressing the law of contracts) were to a great extent based on the Roman or written law of Southern France, while other parts (such as family law and the law of succession) reflect a stronger influence from the North French customary law of Germanic origin.

The drafters of the Code recognized that a legislator could not foresee all the possible applications of a basic legal principle. Therefore, they opted for the flexibility of general rules rather than for detailed provisions. As Portalis commented, “we have avoided the dangerous ambition to regulate and foresee everything... The function of the law is to determine in broad outline the general maxims of justice, to establish principles rich in implications, and not to descend into the details of the questions that can arise in each subject.”^{^[822]} From this point of view, he identified the main tasks of judges in a codified system of law as being to clarify the meaning of the legal rules in the various circumstances that are submitted to them; to elucidate any obscure facets of the law and to fill its gaps; and to adjust the law to the evolution of society and, to the best extent possible, utilize the existing texts to avoid any potential inadequacy of the law in the face of contemporary problems.

The new code, an expression of the power of the middle class, represented both a substantial and formal departure from the preceding system of law, which it was designed to replace.

Even the many pre-revolutionary rules and institutions incorporated into the code were deemed effective only because of their reenactment as part of the new legislation. However, despite the formal rupture with the ius commune, the code was of necessity built up of culturally familiar concepts, institutions and ways of thinking about law derived from the preceding system. Thus, much of the earlier legal tradition, with a new ideological basis, was carried over into the code.

The importance of Napoleon’s Code is attributed to not only the fact that it fostered legal unity within France, but also the fact that it was adopted, imitated or adapted by many countries throughout the world. This was partly due to its clarity, simplicity and elegance that rendered it a convenient article of exportation and partly due to France’s influence in the nineteenth century.

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The Codification of Civil Law in France

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