Napoleonic code

First page of the 1804 original edition.

The Napoleonic Code — or Code Napoléon (originally, the Code civil des Français) — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified. It was drafted rapidly by a commission of four eminent jurists and entered into force on March 21, 1804. Even though the Napoleonic code was not the first legal code to be established in a European country with a civil legal system — it was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1794) and the West Galician Code, (Galicia, then part of Austria, 1797) — it is considered the first successful codification and strongly influenced the law of many other countries. The Code, with its stress on clearly written and accessible law, was a major step in establishing the rule of law. Historians regard it as one of the few documents that have influenced the whole world.[1]

Contents

History

The Napoleonic Code was not based on earlier French laws but instead it followed Justinian's Corpus Juris Civilis in dividing civil law into:

  1. the law of persons;
  2. the law of property;
  3. acquisition of property.

Napoleon set out to reform the French legal system in accordance with the ideas of the French Revolution because the old feudal and royal laws seemed confusing and contradictory to the people. Before the Code, France did not have a single set of laws; laws depended on local customs (coutumes), and often on exemptions, privileges and special charters granted by the kings or other feudal lords. During the Revolution, the last vestiges of feudalism were abolished. Specifically, the many different legal systems used in different parts of France were to be replaced by a single legal code. Leading this drafting process was Jean Jacques Régis de Cambacérès, then the Second Consul under Napoleon. However, due to the turmoil resulting from the various wars and strife with other European powers, the writing of the Code progressed slowly until the relative stability of the Napoleonic Empire.

Developed out of the various customs of France, notably the Coutume de Paris, this process of recodification was inspired by Justinian's codified Roman law. The development of the Code was a fundamental change in the nature of the civil law legal system; it made laws much clearer. The reaction to the Civil Code and other subsequent codes resulted legislative role by judges protesting royal decisions—to protest excesses of royal power or, in some occasions, to defend the privileges of the social classes to which the judges belonged. The latter was especially true in the final years before the Revolution. As a result, the French Revolution took a negative view of judges making law. This is reflected in the Napoleonic Code prohibiting judges from passing judgments exceeding the matter that is to be judged, because general rules are the domain of the law, a legislative, not judicial, power. In theory, there is thus no case law in France. However, the courts still had to fill the gaps in the laws and regulations; thus a large body of jurisprudence was born; while there is no rule of stare decisis (binding precedent), the decisions by important courts have become more or less equivalent to case law.

Contents of the code

The preliminary article of the Code established certain important provisions regarding the rule of law. Laws could be applied only if they had been duly promulgated, and only if they had been published officially (including provisions for publishing delays, given the means of communication available at the time); thus no secret laws were authorized. It prohibited ex post facto laws (i.e., laws that apply to events that occurred before them). The code also prohibited judges from refusing justice on grounds of insufficiency of the law—therefore encouraging them to interpret the law. On the other hand, it prohibited judges from passing general judgments of a legislative value (see above).

With regard to family, the Code established the supremacy of the husband with respect to the wife and children; this was the general legal situation in Europe at the time. It did, however, allow divorce on liberal basis compared to other European countries, including divorce by mutual consent.[2]

Other French codes of Napoleon's era

Penal Code

In 1791, Louis Michel le Peletier de Saint-Fargeau had presented a new criminal code to the national Constituent Assembly.[3] He explained that it outlawed only "true crimes" and not "phony offenses, created by superstition, feudalism, the tax system, and [royal] despotism." He did not list the crimes "created by superstition" (meaning the Christian religion), but these certainly included blasphemy, heresy, sacrilege, and witchcraft. All these former offenses were swiftly decriminalized. In 1810, a new criminal code was issued under Napoleon. As with the Penal Code of 1791, it did not contain provisions against religious crimes or same-sex acts.

Code of Civil Procedure

As the entire legal system was being overhauled, the Code of Civil Procedure was adopted in 1806.

Commercial Code

The Commercial Code was adopted in 1807.[4]

Code of Criminal Instructions

In 1808, a "Code of Criminal Instruction" (Code d'instruction criminelle) was published. This code laid out criminal procedure. The parlement system from before the Revolution had been guilty of much abuse; the criminal courts established by the Revolution were a complex and ineffective system, subject to many local pressures. The genesis of this code resulted in much debate. The resulting code is the basis of the modern so-called "inquisitorial system" of criminal courts, used in France and many civil law countries — though, of course, it has significantly changed since Napoléon's days (especially, with improvements of the right of the defense).

The French Revolution's Declaration of the Rights of Man and of the Citizen had declared that suspects were presumed to be innocent until they had been declared to be guilty by a court of law. A concern of Bonaparte's was the possibility of arbitrary arrest, or excessive remand (imprisonment prior to a trial). Bonaparte remarked that care should be taken to preserve personal freedoms especially when the case was before the Imperial Court: "these courts would have a great strength, they should be prohibited from abusing this situation against weak citizen without connections." However, remand still was the normal procedure for suspects of severe crimes, such as murder.

The possibility for justice to endorse lengthy remand periods was one reason why the Napoleonic Code was criticized for de facto presumption of guilt, particularly in common law countries. However, the legal proceedings certainly did not have de jure presumption of guilt; for instance, the juror's oath explicitly recommended that the jury did not betray the interests of the defendants, and took attention of the means of defense.

The rules governing court proceedings, by today's standards, probably gave too much power to the prosecution; it must be said, however, that criminal justice in European countries in those days tended to side with repression. For instance, it was only in 1836 that prisoners charged with a felony were allowed to have counsel (i.e. a lawyer) in England (the Prisoners' Counsel Act).[4] In comparison, article 294 of the Napoleonic Code of Criminal Procedure allowed the defendant to have a lawyer before the Court of Assizes (judging felonies), and mandated the court to appoint the defendant a lawyer if the defendant did not have one (failure to do so rendered the proceedings null).

Whether or not the assize courts, whose task was to judge severe crimes, were to operate with a jury was a topic of considerable controversy; Bonaparte supported judgment juries, and they were finally adopted. On the other hand, Bonaparte was opposed to the indictment jury ("grand jury" in common law countries) and preferred to give this task to the criminal section of the Court of Appeal. Some special courts were created for the judgment of criminals who could intimidate the jury.

Bonaparte also insisted that the courts judging civil and criminal cases should be the same, if only to give them more prestige.

Codes in other countries

Even though the Napoleonic Code was not the first civil code and did not represent the whole of his empire, it was one of the most influential. It was adopted in many countries occupied by the French during the Napoleonic Wars and thus formed the basis of the private law systems also of Italy, the Netherlands, Belgium, Spain, Portugal (and their former colonies), as well as Poland (1808-1946). In the German regions on the left bank of the Rhine (Rhenish Palatinate and Prussian Rhine Province), the former Duchy of Berg and the Grand Duchy of Baden, the Napoleonic code was in use until the introduction of the Bürgerliches Gesetzbuch in 1900 as the first common civil code for the entire German Empire.

Napoleonic Code was also adopted in 1864 in Romania (with some modifications), which is still in force as of 2006 (articles 461 to 1914). The Code Napoleon was also adopted in Egypt as part of the system of mixed courts introduced in Egypt after the fall of Khedive Ismail. The Code was translated into Arabic from the French by Youssef Wahba Pasha between 1881-1883. Other codes with some influence in their own right were the Swiss, German, and Austrian ones, but even there some influence of the French code can be felt, as the Napoleonic Code is considered the first successful codification. Thus, the civil law systems of the countries of modern continental Europe, with the exception of Russia and the Scandinavian countries have, to different degrees, been influenced by the Napoleonic Code. The legal systems of the United Kingdom other than Scotland, as well as Ireland and the Commonwealth, are derived from the English common law rather than from Roman roots. Scots law, though also a civil law system, is uncodified; it was strongly influenced by Romano-Dutch legal thought, and — after the Act of Union 1707 — by English law.

The term "Napoleonic code" is also used to refer to legal codes of other jurisdictions that are influenced by the French Code Napoleon, especially the civil code of Quebec, which was derived from the Coutume de Paris, which the British continued to use in Canada following the Treaty of Paris in 1763. Most of the laws in Latin American countries are also heavily based in the Napoleonic Code, such as the Chilean Civil Code and the Puerto Rican Civil Code. Despite being surrounded by Anglo-Saxon Common Law territories, Louisiana's civil code has kept its Roman roots and some of its aspects feature influences by the Napoleonic Code, but is based more on Roman and Spanish civil traditions. As a result, the bar exam and legal standards of practice in Louisiana are significantly different from other states, and reciprocity for lawyers from other states is not available.

See also

References

  1. ↑ Robert B. Holtman, The Napoleonic Revolution (Baton Rouge: Louisiana State University Press, 1981)
  2. ↑ "The Code Napoléon: French Legislation on Divorce," Exploring the European Past: Texts & Images, Second Edition, ed. Timothy E. Gregory (Mason: Thomson, 2007), 62-64.
  3. ↑ A. Eymery (1819). "Livre III, Du Code Penal" (in French). Choix de rapports, opinions et discours prononcés à la tribune nationale. VI. p. 320. http://books.google.co.uk/books?id=wOcvAAAAMAAJ. Retrieved 2008-03-31. 
  4. ↑ 4.0 4.1 "Commercial Code (Legislative Part)". http://www.legifrance.gouv.fr/html/codes_traduits/commercetextA.htm. 

External links