Prior to the movement for the codification of Continental law in the nineteenth century, of which the Napoleonic Code is the most prominent example, Continental legal systems were based largely on a system of law known as the ius commune. To the extent that it comprised a body of substantive law, the legal principles that obtained were of mixed origin. The ius commune could claim its roots in the Roman law of Justinian, as interpreted and expanded by the medieval Italian glossators and commentators, and as influenced by Germanic customary law. The ius commune, however, was not a static body of doctrine; by the nineteenth century it was imbued with humanistic principles of the fifteenth century and natural law thinking of the late seventeenth century. In form, the ius commune was largely nonstatutory; it was found largely in the cases, where judges sought out and applied this amalgam of doctrinal principles refined by academics and by jurists to the legal dispute before them.
In the late eighteenth century, as Enlightenment ideals spread and the ancien régime began to unravel, the ius commune came under attack as being antidemocratic. Ideologically, the ius commune did not comport well with emerging notions of equality. In the first place, the ius commune was fashioned by jurists and judges and did not necessarily reflect the popular will. Second, its principles were often class specific, creating different rules for different social classes. In its defense, as the great German jurist Friedrich Karl von Savigny (1779–1861) argued, the ius commune was able to reflect the spirit of the people; it was imbued with age-old custom that embodied well-ingrained legal and cultural norms. Moreover, judges and jurists, the "oracles of the law," could interpret its principles in context and add to the law in substantive areas in which the ius commune was incomplete.
Codification was not a novel idea in nineteenth-century continental Europe; it had been undertaken in Prussia, Italy, and Austria in the eighteenth century (though usually piecemeal) and had melded with existing law. The codification movement of the nineteenth century, however, went further. It sought to replace the ius commune with a comprehensive system of law based on a text to which judges could refer in resolving disputes. In theory, the code would stand alone as the source of substantive private law. Because it was complete, neither recourse to previous law nor appeal to earlier jurisprudence and its philosophical underpinnings were theoretically possible. Thus, not only were new principles of law to govern private affairs, a new role for judges was also fashioned; judges were charged to find the law rather than to make it. And law was to be discovered, indeed all of the law, in the pages of the code.
Two issues have been raised and greatly debated among legal historians of codification. First, what were the jurisprudential origins of these newly codified legal principles? Second, did the legal system constructed actually operate as theory proclaimed? The first question can be easily addressed. Codification began in France before the turn of the nineteenth century. In 1799 the National Assembly rejected two draft codes. It was only after Napoleon came to power later that year that a commission prepared an acceptable version of a civil code. The commission, however, was composed not of citizens but of lawyers steeped in existing law; two were experts in customary law, while two others were scholars of the ius commune. Some preparatory work on rationalizing customary law and systematizing had already been undertaken, and the commission of four built the code upon the painstaking scholarship of others. The code as it was finally promulgated in 1804 relied upon both sources, the Roman and the customary law, though most modern scholars believe that the former predominates. Perhaps the codifiers' greatest feat was that they were able to reduce complex principles of private law to language comprehensible to the nonlawyer.
Admirable though the accomplishment of the commission was, the code was arguably still incomplete. Article 7 provided that the code superseded only that law that was addressed in its chapters. Because the code thus failed to abrogate all existing law, it begged the question as to whether parts of the ius commune remained in force. Surviving historical evidence suggests that differences emerged in the commission as to whether existing law continued in les matières (the subject areas) that the code left unaddressed. A primary concern was uniformity; prior to the code, private law in France varied by region, with the south largely governed by Roman law and the north under the sway of a diffuse body of Germanic customary law. Allowing appeal to past law would continue to leave France and French law divided by geography, rather than controlled by a single body of national law, a state of affairs that likely appeared anachronistic to the nineteenth-century mind.
Linked to the question of the extent to which earlier law survived the codification is the issue of the role of judges in the new legal order. It is often difficult for lawyers to imagine a body of law that is sufficiently complete and unambiguous that it can be applied in a rote fashion by judges, particularly in complex cases. But that was indeed the code's aspiration. Judges were to be far less powerful under the emerging legal order. The position of judges would be strengthened, however, if under certain circumstances appeal could be made to earlier law. Judges would be empowered twice: first to decide whether the code resolved an issue or whether there was a lacuna that required reference to principles outside the code; and second, if a lacuna existed and it was necessary to go outside the code, the judges had to determine what law should fill the gap.
Just as there was much continuity between the substantive law redacted in the code and earlier Roman and Germanic law, there was a similar approach to judging both before and after codification. Nineteenth-century Continental civil lawyers were trained to examine a text, be it the code or the more amorphous ius commune, and their legal method inclined them to apply the appropriate abstract rule to the controversy. Civilian judges, unlike their common-law brethren, do not examine what has been done in the past, or indeed what ought to be done in the present; rather, they focus on the command of the lawgiver as provided in the text.
Thus there was a strong connection with the past in both the substantive law and nature of the adjudicative process after the institution of the Napoleonic Code. But there was also significant change. After all, the code was adopted shortly after France had undergone its Revolution—an upheaval in politics, society, and the law. Two important interrelated areas of law that were affected by both the Revolution and the Napoleonic Code were that of family law and inheritance. While the origins of European family law can be found in canon law, family law in France had undergone much secularization even before the Revolution. Marriage, for example, had long been considered a civil rather than a religious act. Divorce, however, was proscribed, though civil judicial separations were permitted, even if they were rarely sought.
The Revolution's focus on égalité (equality) produced a number of reforms of family law that were more favorable to women than preexisting law. Divorce became far more easily obtainable (even for incompatibility or by mutual consent). Child custody ceased to be patriarchal: mothers took legal custody of their daughters, fathers their sons. Alimony was granted to divorced wives, as was the possibility for divorced women to demand the return of their marriage portions. Likewise paternal authority over children was diminished.
The Napoleonic Code reversed some of the reforms of the Revolution, and it did so with a vengeance. In the first place, it restored the elements of patriarchal power that had been swept away by the Revolution. Article 213 aptly summarizes the change by proclaiming: "The husband owes protection to his wife, and the wife obedience to her husband." Legal incapacity of married women was created, resembling English law's archaic and arcane concept of coverture. While marriage remained civil, parental consent was required for male children under the age of twenty-five and females under the age of twenty-one. Given Napoleon's own tumultuous marriage, it should come as no surprise that divorce was permitted. But the grounds for divorce recognized in the code were far more limited than those sanctioned under the law fashioned by the Revolution.
Viewed in its totality, then, the code sought to restore the traditional family by bringing back at least some of its earlier legal underpinnings. The code's provisions on inheritance of property likewise reversed some of the Revolution's law. Unlike fathers under Roman law, the inheritance law of the Revolution limited the right of parents to disinherit children, permitting the parent a disposal share of only 10 percent. While the percentage was increased thereafter, the Napoleonic Code created a different balance between the disposable share that the property owner could will freely and the children's "reserved share"—a balance more favorable to the parent: those with only one surviving child could dispose freely one-half of the patrimony; those with two children, one-third; while those with three or more children could dispose of only one-quarter. Transfers of property inter vivos (that is, during the parent's life) that exceeded the disposal portion were called back to the family coffers and distributed to the children, even if the property in question had been conveyed to third parties. Some notion of Revolutionary egalité remained, however, because children inherited shares equally and irrespective of sex. Whether the dictates of this rather complex rule of inheritance were followed and whether property owners and their notaries were able to circumvent them through craftily drafted documents are topics of considerable historical debate. Suffice it to say that in matters of inheritance the code preserved some of both the pre- and post-Revolutionary flavors of French law.
The Napoleonic Code is a civil code and therefore did not deal with matters such as civil or criminal procedure, criminal law, and commercial law. Further codes were later adopted to deal with these matters. The code governed exclusively private law; the law of obligations, contract law, was an important component of the Napoleonic Code, and in many provisions the law reflects its Roman origins. As in Roman law, consent is the basis of a binding obligation, and obligators bind themselves and their property. But arguably the code harked back to Roman law principles because the society that the code governed was more akin to that of Rome than of the medieval France in which customary Germanic law held sway. France had undergone a transition from a society organized by family groupings to a more individualistic society. Both the law of obligations and that of ownership curiously found its modernity in the Roman rather than the Germanic heritage.
Although much amended in detail, the Napoleonic Code has survived in structure and in concept into the twenty-first century. The movement for codification that gripped France also swept across Europe in the long nineteenth century. Germany, Italy, Spain, Switzerland, and Austria among others became engaged in the process of systematizing, rationalizing, and unifying national law through codification. Like France, these emerging "nations" sought to bring together Roman and customary principles in a form intelligible to the modern educated mind. In addition, the Napoleonic Code has been transported elsewhere, most notably to the New World; the civil codes of Louisiana and Quebec adhered to today have been inspired by it, and its vestiges still govern. Indeed the survival of the Napoleonic Code in these outlying "provinces" is even more impressive given that these two enclaves are surrounded by common law jurisdictions.
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