Ordonnances

by Gebhard Rehm

1. Terminology

After the dissolution of the Carolingian Empire (completed in AD 921), France and Germany went their separate ways in the law as in everything else, though the Frankish roots were not wholly severed in either state. In the course of this process, France was—as far as its law is concerned—divided into two parts, albeit with often fluid boundaries. The north (geographically north of an imaginary line joining Geneva with the mouth of the Gironde) continued to be governed by the so-called droit coutumier (customary law) based on the Frankish-Burgundian vulgar tradition, while the south applied various folk laws originally inspired by Roman sources and increasingly influenced by the reception of the Corpus Juris Civilis (droit écrit, ie written law). It is nevertheless true that even the law in southern France was to some degree moulded by customary elements. Moreover, legal fragmentation separated not only the north from the south, but it is also evident between the different regions; thus the applicable rules and principles are often hard to make out. From the 12th century onwards, there began to appear collections of local or regional laws that were initially compiled mainly in order to record the customary law (Coutumes). With the Ordonnances, as such legal provisions or decrees were called under the Ancien Régime, the French kings pursued two principal goals, especially from the 16th century onwards: first, to facilitate the way in which law can be retrieved; and secondly, to mitigate the prevailing fragmentation.

At the outset, the Ordonnances were no more than a compilation of the customs applicable in any one place (such as the enormously important Coutume de Paris), but they were later used by the kings as an instrument of their own legislation, thus laying—in the long term—the foundations for legal unification under Napoléon Bonaparte (Code civil, Code de commerce). A distinction is sometimes drawn between so-called ‘ordinances proper’ (ordonnances proprement dites), edicts (édits) and other decrees known as ‘declarations’ (déclarations). While declarations were intended to supplement or interpret existing legal provisions, and edicts aimed to resolve specific and individual issues, ordinances proper concerned whole areas of law and can thus be seen as early precursors of the codification movement. So-called Ordonnances de réformation, such as, for example, the Code Michau, were the King’s reaction to the law reform proposals of the Estates-General; their legislative scope was often correspondingly broad although they were not systematically crafted or embedded.

In modern legal practice (which is, however, not the concern of the discussion that follows), the term Ordonnances describes enactments in the sense of executive orders or statutory instruments passed by the government. They can, and are indeed at times used to, circumvent parliamentary competences to a remarkable degree, which attracts much criticism in the literature. The recent reform of the Code de commerce, for example, was essentially effected by way of Ordonnance.

2. Subject matter of the Ordonnances

a) Declaratory Ordonnances

The first important Ordonnance was the Ordonnance de Montil-les-Tours (1453). It was passed by Charles VII after the end of the Hundred Years’ War, and it thus accompanied the ‘re-foundation’ of France. This Ordonnance did not itself unify the law, but only provided—effectively as a precursor to unification—that the various regional ‘customary laws, customs and practices’ (Coutumes) be recorded so as to be more readily ascertainable in the interest of bon ordre de justice. This marked initial restraint was not motivated by the King’s desire to facilitate competition between the (local and regional) legal systems, but was due to the King’s still limited legislative competence and the need to ascertain the state of the law after the prolonged conflict with England and the French civil war. Originally, royal decrees had required the approval of the principal provincial or local rulers, but their consultation became a mere formality in the wake of the noticeable increase in the King’s power from the mid-13th century onwards. It is true that the Estates-General, ie the representatives of the nobility, the clergy and the Third Estate, began to exert a certain influence over legislation during the 14th century, yet this should not be overestimated. The king would see their initiatives as occasions or starting points for a piece of legislation, without necessarily complying with any substantive demands. The Ordonnances of the 13th and 14th centuries were mainly directed at the prohibition of feuds, ie the prevention of the ubiquitous private wars between feudal lords—often also involving their relatives—which were particularly unwelcome in times of the French King’s war against a foreign power (such as England). These prohibitions of feuds did not, however, have any effect to speak of, and the era of private wars did not end until the passing of the Ordonnance Cabochienne (1413).

b) Transition towards reformative Ordonnances

Recording the Coutumes (customary laws) triggered an interest in them and led to their becoming an object of study. In this way, the Coutume de Paris (first officially recorded in 1510, then commented on by Dumoulin in 1539 and later republished in a revised form in 1580) established itself as the foundation of northern French customary law, which was to reduce the influence of Roman law. Increasingly, however, specific questions came to be dealt with by legislation. The Ordonnance de Roussillon (1549), for example, brought the beginning of the year forward from Easter to 1 January, the Ordonnance de Moulin allowed Charles IX in 1566 to limit the rights of the Parlements (royal superior courts) and of local governors (acting as the King’s representatives), and the Ordonnance de Blois (1579), passed by Henry III, banned secret weddings and introduced a wedding register to be administered by the church.

c) Ordonnances as the basis of incipient legal unification

The French kings increasingly began to see Ordonnances as an opportunity to gain more influence over the development of the law and for the passing of instruments harmonizing entire areas of law. The Ordonnance de Villers-Cotterêts of 1539 (also known as Ordonnance Guillemine, or officially as Ordonnance générale sur le fait de la justice, police et finances) had already determined certain issues of clerical jurisdiction, ordered the establishment of a baptism register and declared French instead of the regional ‘vulgar languages’ or Latin to be the official language of law and administration. It also contained parts dealing with criminal law. The Code Michau of Louis XIII was passed as a response to a series of proposals of the Estates-General in the areas of civil law, (maritime) trade, matrimonial and criminal law. Yet since it would have curtailed the power of local rulers and of the Parlements—in particular the right to register an Ordonnance as a condition of its validity (so-called remontrance)—in favour of the King, it was doomed to fail, not least as a result of cardinal Richelieu’s opposition. Subsequently, however, when Louis XIV ceased to convene the Estates-General and made more and more use of comprehensive legislative instruments, several Ordonnances were enacted in quick succession: the Ordonnance civile touchant la réformation de la justice of 1667 (also known as Ordonnance de S. German-en-Laye or Code Louis) concerning the law of civil procedure, the Ordonnance criminelle (1670) harmonizing criminal law and the law of criminal procedure, the Ordonnance du commerce or Code Marchand (1673) and the Ordonnance de la marine (1681).

The Code Louis made exhaustive provision for civil actions, structured in stages from summons to execution. Even though it contained some new legal rules, it was primarily intended as a systematic compilation of existing rules, and it harmonized and unified French civil procedural law in a single code. Rules conflicting with it were expressly repealed. Similarly, the Ordonnance criminelle constituted an exhaustive codification of the criminal process and made an attempt at fighting crime by radically curtailing the rights of the accused. The two last-mentioned of the above statutes concerned commercial and maritime (trade) law and thus became the first codifications of commercial law in Europe. In terms of substance, the Code Marchand contained provisions about merchant status, commercial and banking transactions as well as jurisdiction in commercial matters. The Ordonnance de la marine sought to govern the public and private law aspects of sea trade, so as to be able to compete with the English maritime law and that of the Hanseatic League (Hanseatic League and pre-modern commercial law) in the spirit of French mercantilism and with a view to enhancing France’s wealth. Finally, the Code Noir (1685), an Ordonnance which proved to be of minor practical importance only, aimed at regulating the legal position of (black) slaves in the French territories.

During the first half of the 18th century, under Louis XV, the idea of a step-by-step codification of the entirety of French civil law was first broached by Daguesseau. Yet the project did not advance beyond the enactment of Ordonnances on gifts (1731), testaments (1735) and substitutions in the law relating to the trust-like devices known as the fideicommissum (1748).

3. Significance

The various Ordonnances (of which this account can give no more than an overview) thus developed under the Ancien Régime from a mere collection of customary law to a means of attempted legal harmonization on the initiative of the Estates-General. They eventually became a powerful instrument of codification in the hands of the King. Their respective significance was always determined by the then-current balance of power, especially regarding the King’s position vis-à-vis local rulers and the Estates-General. It is hence unsurprising that the four above-mentioned Ordonnances of Louis XIV, the so-called Grandes Ordonnances, attained the greatest importance. The two mercantile Ordonnances, drafted under the aegis of mercantilism’s founding father, Jean-Baptiste Colbert, and the commercial lawyer Jacques Savary, as well as the Code Louis and the Ordonnance criminelle exerted a lasting influence on the emergence and development of French commercial, procedural and criminal law. Apart from such specific impact, the Ordonnances subsequently proved to be an indispensable pre-condition of legal unification in France. This was, however, not to be finally accomplished until the enactment of the Code civil and its ‘sibling’ codes (inter alia, the Code de commerce).

The Grandes Ordonnances of Louis XIV have to be understood as codifications and therefore as exhaustive statements of the law governing a particular area. They are not (subsidiary) compilations of existing legal rules, even if their merit lies not so much in introducing radical new rules, but in systematizing the fragmented law spread out over customary law and numerous earlier Ordonnances. In this respect, the Grandes Ordonnances are of principal significance in the field of public law. Daguessau’s private law compilations, by contrast, do not aspire to be codifications, providing only for individual legal institutions rather than comprehensively covering whole areas of law. Ultimately, they were primarily intended to harmonize the application of law by the Parlements, not to iron out the differences between the substantive law applicable in the pays de droit coutumier and the pays de droit écrit. It is, however, true of all Ordonnances that they were ‘not an instrument of reforming the law, but of preserving it: [they] did not posit new law, but re-posited the old’ (Walter Wilhelm).

Literature

Ernest Glasson, Histoire du droit et des institutions de la France VIII (1903) §§ 17 ff; Robert Holtzmann, Französische Verfassungsgeschichte (1910) 220 ff; Adhémar (Jean Hippolyte Emmanuel) Esmein, Cours élémentaire d’histoire du droit français (1925) 816 ff; Walter Wilhelm, ‘Gesetzgebung und Kodifikation in Frankreich im 17. und 18. Jahrhundert’ (1967) 1 Ius Commune 241; Heinrich Kaspers, Vom Sachsenspiegel zum Code Napoléon (1978) 155 ff.

Sources

The Royal Ordonnances of the Ancien Régime are collected by Athanase-Jean-Léger Jourdan, François-André Isambert, Alphonse-Honoré Taillandier (eds), Recueil général des anciennes lois françaises, depuis l’an 420 jusqu’à la Révolution de 1789 (1821–1833) <www.gallica. bnf.fr>.