by Gebhard Rehm
The French Code civil (Civil Code) (also known as Code Napoléon due to the intense personal involvement of Napoléon Bonaparte in its compilation; this was also the official title of the code for some time) is still the focal point of French private law, though its effects reach far beyond this. Carbonnier thus describes the code as the ‘civil constitution’ of France. Together with the Code de commerce (Commercial Code), the Code pénal (Criminal Code), the Code de procedure civile (Code of Civil Procedure) and the Code d’instruction criminelle (Code of Criminal Procedure), the Code civil is one of the so-called Grands Codes of the Napoleonic era.
Historically speaking, the Code civil marks the final transition from the pre-revolutionary Ancien Régime to the Republic. It came into force not long after the French Revolution, absorbing its ideals but not its excesses. The ideal of freedom is reflected in the principle of freedom of contract and in the protection afforded to private ownership (property, property rights, protection of), the principle of equality in the abolition of the nobility’s traditional privileges and in the equal distribution of estates upon death. Yet the Code civil does not break with the law that applied before it came into force. Instead, it skilfully brings together the various legal traditions running like threads through the previously fragmented French law. It is owing to the Code civil that Frankish antetypes play a greater role in some respects within legal systems belonging to the Romanist family than in those belonging to the Germanic family. The code therefore secures historical continuity in a way not necessarily to be expected in view of its revolution-triggered origins.
As far as the history of ideas is concerned, the Code civil is a progeny of the age of Enlightenment. It rests on the assumption that the whole of the law can be compiled into a single codification which will rationally organize social life. Such is the historical significance of the Code civil that it became a role model not merely for Romanist legal systems, but also for numerous other states. It provided a stimulus for, and exerted a lasting influence on, the 19th-century codification movement, despite the fact that the ideas of the Revolution did not meet with unequivocal enthusiasm in all the states where a reception took place.
Even though the conditions of everyday life have changed dramatically since the enactment of the Code civil (which is, after all, a statute compiled prior to the Industrial Revolution), large parts of it are still in force today. Many provisions do, of course, hardly reflect modern legal reality unless one also takes account of the case law which explains and modifies them. Apart from the perceived substantive achievements and its promise of liberty and equality, the success of the Code civil both in France and elsewhere rests primarily on its much-extolled linguistic qualities. By stark contrast to the editorial process concerning the compilation of the German Bürgerliches Gesetzbuch (BGB), the authors of the Code civil strove to produce a code which, while pertaining to difficult subject matters, should nevertheless be as comprehensible as possible for the ordinary citizen. They were undeterred by their awareness that this ideal would be impossible to achieve in a society as complex as the French. The Code civil is thus characterized by its concise and succinct language. Stendhal claimed to have read it daily in order to train his linguistic proficiency. The distinct appreciation of language with almost literary pretensions, so much more developed in French than in German legal circles, may find its root and typical expression in the stylistic hallmarks of this code. At the same time, however, the desire to ensure that formulations are widely understood and the tendency to avoid technically complicated terminology sometimes comes at the expense of precision. The authors of the Code civil were conscious of this, but accepted and even welcomed it so as to afford judges flexibility in individual cases and to allow some leeway for future developments of the law.
2. Roots and history
At the time of the Revolution, France was still far from having a unified system of private law, even if the fragmentation of law was less marked than in Germany. Even the so-called Ordonnances had only been able to bring about uniformity in part and confined to specific areas (especially procedural and commercial law). In the north of France (including Paris), the influence of Frankish-Burgundian custom (coutumes/droit coutumier) remained substantial long after the reception of Roman law via the northern Italian universities had taken place. In the south, by way of contrast, the Roman legal tradition had already prevailed since the Roman conquest (droit écrit). Additionally, there were numerous divergences within each of these two basic systems. In view of the over 350 different Coutumes générales and locales, Voltaire had a point when he remarked that a traveller in France changed legal systems as often as his horses. Montesquieu still regarded complete unification of the law as impossible given the profound economic and cultural discrepancies between the various regions.
After the French Revolution, the issue of a uniform civil code soon became a centre of attention. Legal fragmentation had led to legal uncertainty and had thus created considerable leeway for the courts. Prone to corruption as the courts were, they had widely taken advantage of this lack of constraints. A central aim of a single uniform codification was to destroy the foundation for this latitude which had so often been abused. Subsequent to its first mention in the so-called cahiers de doléance (lists of grievances) of 1789, the compilation of all private law into a code (Code des lois civiles communes à tout le royaume) was expressly envisaged by Art 1 of the constitution of 3 September 1791 as one of its goals. The protagonists wanted the law to be unified, simple and precise. Yet, until Napoléon came to power, the only acts to be passed were unconnected (so-called droit intermédiaire). Their harmonization—prepared, inter alia, by three drafts which Cambacérès put forward—failed to be achieved in the turbulent immediate aftermath of the Revolution.
Under these circumstances, it seemed to Napoléon that harmonization of the law by the enactment of a civil code was objectively a matter of necessity which could at the same time be a means of stabilizing his reign and serve as an instrument of reconciliation. Many years later, when in exile on the island of St Helena, he concluded that the fame gained by winning 40 battles had been wiped out by his defeat at Waterloo, but he predicted that his Code civil would last for all posterity.
In August 1800 Napoléon appointed a commission which undertook important preliminary work. François Denis Tronchet, Jean Étienne Marie Portalis, Jacques Maleville and Félix Julien Jean Bigot de Préameneu, all either judges or administrative officials, produced a first draft after just four months (Napoléon had allowed them six). This was made possible by the fact that the commission was able to draw on the works especially of Robert Joseph Pothier and Jean Domat. After a process of consultation with the Cour de Cassation and the appellate courts (Cours d’Appel), the code was finalized in the Conseil d’État following extensive debates. Napoléon chaired about half of these sessions personally. Not being a lawyer, he was emphatic in his insistence on pragmatic solutions and simple language. With respect to the content of the code, he was more interested in general principles than in technical detail, though he did occasionally concern himself with specific questions (such as the legal status of soldiers and of citizens living in the overseas territories, the rights of foreigners in France, or the pre-conditions of divorce). It is widely assumed that his particular interest in a liberal divorce law regime was actually motivated by personal reasons: his long-standing plan to establish a dynasty required him to divorce Joséphine as their marriage had remained childless. Such a divorce, however, would not have been possible under the restrictive traditional grounds of divorce. There were, as a result, also times where his attention was caught by the law relating to adoption. All in all, his determination and political clout contributed considerably to the speedy conclusion of the deliberation process (René Savatier: ‘[Le Code civil]… est l’œuvre de la volonté d’un homme: Bonaparte’).
The final draft was then passed on in individual parts to the Tribunat, the body responsible for discussing government bills (though without a right to decide on them). Yet the Tribunat and—on its recommendation—the Corps Législatif (being the actual legislative assembly, though without a right to debate bills) rejected the first parts of the draft code towards the end of 1801. A reason for this may be found in the fact that the Tribunat had hitherto been largely excluded from the drafting of legislation and that it wanted to demonstrate its power (bills could only be accepted or rejected in toto). There was, moreover, some substantive criticism: the role of judges, perceived as corrupt under the Ancien Régime, was thought to be too strong, and the draft family law regime appeared insufficiently revolutionary. Napoléon reacted by withdrawing the entire draft on 3 January 1802. He wanted to wait for a more sympathetic legislature. When a few ‘obstructionists’ subsequently retired from office (some involuntarily), the draft was again put before the Tribunat. At first this happened under a veil of confidentiality and informality, later—after the Tribunat had signalled its approval—also officially. The 36 original chapters or ‘titles’ of the code were passed between March 1803 and March 1804. On 21 March 1804, the statute as a whole came into force under the name Code civil des Français. It repealed all previously applicable law dealing with the same subject matter.
3. Structure of the code
The structure of the Code civil, which originally consisted of 2,281 articles, only slightly modifies the Roman system and contains a tripartite division into the law of persons, things and rights. Following an introductory section of six articles (Livre préliminaire), the First Book, Des personnes (Art 7-515), governs citizenship (the relevant rules have since been moved to a separate statute) and fragmented aspects of the law relating to aliens. Case law and literature subsequently shaped the latter into a comprehensive system of international private and procedural law. In addition, the First Book encompasses family and matrimonial law (except matrimonial property law) as well as the law of guardianship. The Second Book, Des biens et des différentes modifications de la propriété (Art 516-710), codifies the law of property, ie the law relating to ownership (including the law of expropriation) and lesser property rights such as usufructs, uses, and servitudes. The Third Book, Des différentes manières dont on acquiert la propriété (Art 711-2281), is concerned with the different means of acquiring ownership. Besides the law of succession, this colourful kaleidoscope of provisions also comprises the law of obligations (the acquisition of ownership following a purely consensual approach: Art 1588 Code civil) including the law on agreements about matrimonial property, the enforcement of claims, as well as the rules on prescription.
Very recently, the Code civil was amended and restructured by the addition of two further books. The Fourth Book, which came into force in 2007, governs the law of personal and real securities (previously contained in Book Three), while the Fifth Book has since 2006 made provision for a modified application of the code in the French overseas territory of Mayotte.
4. Main substantive principles
The expert commission chaired by Tronchet und Portalis which was involved in the drafting of the Code civil thought that it could not prescribe law, but rather that law had to evolve over time. Its aim was to be ‘useful rather than original’, and it preferred compromise and reconciliation to radical reform of the law. Being staffed by advocates of the northern French Coutumes as much as by Romanists, the commission took its lead from the legal traditions already established in France. The law of property, family law and the law of succession thus bear the stamp of French customary law (itself based on Germanic traditions) as well as the relevant Ordonnances. The law of obligations, on the other hand, was strongly influenced by the writings of Robert Joseph Pothier. Like certain other fields, such as the law relating to matrimonial property and wills, it is based on the Roman model.
The core ideals of the Enlightenment—freedom and equality—resulted in a comprehensive guarantee of private autonomy, exemplified especially in the protection of property (Art 544) (property rights, protection of) and freedom of contract (Art 1134), albeit these subjective rights have to be exercised within the framework provided by the legal system as a whole. Individual responsibility for culpable conduct (Arts 1382, 1383) corresponds to freedom. Many later commentators regard the protection of property, freedom of contract and general delictual responsibility (law of torts/delict, general and lex Aquilia) as the backbone of the Code civil and the real legacy of the Revolution, even though the authors of the code probably ascribed less significance to them (Alfons Bürge, James Gordley). It was only in the course of the 19th century that the myth (gradually) developed of the Code civil as a revolutionary statute to be interpreted without recourse to external sources.
Yet in truth the code did not break with the past, despite some tendencies towards reform. For example, it provided that a defendant convicted of certain (especially political) offences should suffer ‘civil death’, meaning that his wife became a widow, that he could not own anything, or conclude contracts, and that his children were orphaned. This drastic sanction remained part of the law until 1854. Principal beneficiaries of this blend between conserving traditions and selectively liberalizing and individualizing the law were—and this, at any rate, was unprecedented in Europe at the time—members of the liberal bourgeoisie. Feudal privileges, such as had pervaded the law of succession, real property and hunting, were abolished or the relevant provisions of the droit intermédiaire confirmed, although the institution of the Empire on 2 May 1804 led to an immediate—if temporary—resurgence of the nobility, now under the control of the Emperor. The protection of property enhanced the differences between the propertied classes and those without property. Labour law remained wholly unregulated; trade union activity and strikes were prohibited. A secular system of family law replaced the prevailing canonical (canon law) or customary law relating to marriage, without however fundamentally altering its substance. Even when, following Napoléon’s insistence, divorce was allowed, the hurdles were increased when compared with the droit intermédiaire. It is true that everyone was deemed equal before the law, yet this principle was not fully implemented as modern understanding would require: the position of women was an improvement upon that pertaining under the Ancien Régime, yet they were by no means treated as men’s equals. A woman thus owed obedience to her husband (a rule also said to have emanated from Napoléon’s experience with Joséphine), and the father of a family was—in theory at least—entitled to manage the spouses’ joint as well as the children’s property and to decide on all questions concerning a child’s education. Illegitimate children were, moreover, not treated on a par with legitimate children, and foreigners did not enjoy the same rights of citizenship as Frenchmen.
Only gradually did the Code civil move away from the path regarded by many as being based on unlimited individualism and as favouring the bourgeoisie. The Industrial Revolution began to reveal lacunae particularly in the law of torts, labour law and insurance law. At first, these were filled judicially through case law—it is thus a myth that judges in France played no significant part in developing the law. Subject matter initially contained within the Code civil was later hived off into special statutes. The specific fields of labour law, insurance law and consumer protection law developed from a combination of cases and special statutes. Many fields were reformed after 1945. The land registration regime, the law relating to adoption and guardianship, marital property law, parent-child relations, divorce law and consumer protection law are only some of the areas substantially altered in the process. The reforms were characterized by the wish to achieve equal treatment of men and women, to improve the position of illegitimate children and to ensure the protection of employees and consumers—in short: to make private law more socially responsive. European law, too, has had a profound influence on the Code civil. Plans for a sweeping reform of the law of obligations and the prescription regime (Projet Català), first envisaged in 2005 and intended as a distinctly French model to counteract the increasing European pressure for the harmonization of contract law, were only partially implemented in 2008. The prescription law has thus been reformed; the reform of contract law is due soon. The reform of the tort law has been put on ice for the time being. The law of guardianship underwent further changes as of 1 January 2009.
All in all, the lasting success of the Code civil shows that it has managed to arrive at a stable equilibrium between the conservation of traditional elements and the alignment with the values of freedom and equality. At the same time, it has proved to be sufficiently open—in the light of statutory reforms—towards judicial development and amendment of the law to serve as a modern basis of French private law, even after 200 years. The current (and imminent) reforms of the law of obligations are motivated on the one hand by the desire to preserve French legal traditions; on the other hand, they are evidently also designed to enable France to feed modern solutions into the process of harmonizing European private law. Representing two important reforms of succession law, in 2002 the succession rights of spouses and illegitimate children were strengthened and the 2007 changes brought new instruments for testamentary dispositions as well as changes to the rules on legal succession.
5. Reception and international impact
Due to the physical enlargement of the French state under Napoléon, the Code civil applied in numerous territories, eg in the areas west of the Rhine which Germany had surrendered to France. Some states, such as the Grand Duchy of Baden, a member of the Rheinbund (Confederation of the Rhine), voluntarily adopted the Code civil (as Badisches Landrecht, ie Law of the State of Baden), albeit with certain regional features that continued to apply. This extension into German-speaking areas ensured that German lawyers have—ever since—paid special attention to the Code civil, both before and after the enactment of the Bürgerliches Gesetzbuch (BGB) in 1900, thus providing a fertile basis for the dialogue between them and French lawyers. The influence exerted by the so-called Rheinisches Recht (Law of the Rhineland, ie the applicability of the Code civil in German areas lasting until 1900 in some cases) on Germany’s legal development is not to be underestimated. In Belgium and Luxembourg, the Code civil came into force after these countries had become part of France at the Congress of Vienna. To a large extent, it is still applicable in these countries today, with Luxembourg retaining more of its original features than Belgium. There was a time when it also applied in the Netherlands, and it inspired the Italian Codice civile of 1865. These states, however, severed the direct link with the French legal tradition in the 20th century. A far-reaching reception of the Code civil took place in Romania (1863), Portugal (1867) and in Spain (1888/89). Via the Iberian connection, it also exerted its influence in numerous Latin American legal systems, until these too began to be influenced by other legal traditions. It was, of course, inevitable that the Code civil would leave an imprint on the French colonies and mandated territories (such as Egypt, Syria, Lebanon, Indochina). Additionally, it also influenced the civil codes of the US state of Louisiana and of the Canadian province of Quebec, yet these jurisdictions have in more recent times become dominated by the (for them) almost irresistible pull of the common law. The new Code civil of Quebec (1994), in particular, marks a distinct departure from the French legal tradition.
Société d’études législatives (ed), Le Code civil 1804–1904: livre du centenaire (1904); René Savatier, L’art de faire les lois, Bonaparte et le Code civil (1927); James Gordley, ‘Myths of the French Civil Code’ (1994) 42 Am J Comp L 459; Murad Ferid and Hans-Jürgen Sonnenberger, Das französische Zivilrecht, vol 1 (1994) 1 A 201 ff, 1 A 30 ff; Alfons Bürge, Das französische Privatrecht im 19. Jahrhundert (2nd edn, 1995); Reiner Schulze (ed), Rheinisches Recht und Europäische Rechtsgeschichte (1998); Dalloz, Litec (ed), Le Code Civil 1804–2004 (2004); Werner Schubert and Mathias Schmoeckel (eds), 200 Jahre Code civil (2005); Hans-Jürgen Puttfarken and Judith Schnier, ‘Der Code Napoléon damals und heute —eine Betrachtung aus deutscher Sicht’ (2006) 105 Zeitschrift für Vergleichende Rechtswissenschaft 223; François Terré (ed), Pour une réforme du droit des contrats (2009); John Cartwright, Stefan Vogenauer and Simon Whittaker (eds), Reforming the French Law of Obligations: Comparative Reflections on the Avant-projet de réforme du droit des obligations et de la prescription ('the Avant-projet Catala') (2009).
The current version of the Code civil may be found in Alice Tisserand-Martin, Georges Wiederkehr, François Jakob, Xavier Henry, Guy Venandet and François Baraton (eds), Code civil (110th edn, 2011) www.legifrance.gouv.fr. English translation: <http://188.8.131.52/code/liste.phtml?lang=uk&c=22>. Spanish translation: <http://184.108.40.206/code/liste.phtml?lang=esp&c=41>. Original version of 1804: <www. assemblee-nationale.fr/evenements/code-civil-1804-1.asp>. Records of the legislative process may be found in P Antoine Fenet, Recueil complet des travaux préparatoires du Code civil (1827); Jean-Étienne-Marie Portalis, Discours préliminaire du premier projet de Code civil (1801) <http://classiques.uqac.ca/collection_documents/portalis/discours_1er_code_civil/discours_1er_code_civil.pdf>.