'Is it not an absurd and terrible thing that what is true in one village is false in another? What kind of barbarism is it that citizens must live under different laws? When you travel in this kingdom you change legal systems as often as you change horses?' - Voltaire, speaking of pre-Revolutionary France
Still in existence today, and often referred to as the Code Napoleon, the Civil Code introduced to France by then First Consul Napoleon Bonaparte in 1804 changed the political lives of all of the nations that adopted it either in whole or part and was the main influence behind the creation of civil codes in most of the countries of continental Europe and Latin America throughout the 19th-century.
Whereas a patchwork of customary laws based on tradition and the whims of monarchs had previously ruled throughout the continent, the new code introduced the concept of a unified, logical system based on general principles of law, thereby exporting the ideas of the French Revolution beyond French borders to enemies and allies alike.
The first words of the Code appear in an entirely separate document, the fourth article of the 1791 Declaration of Rights of Man and the Citizen: 'The exercise of the natural rights of each man has no limits other than those that ensure to other members of society enjoyment of those same rights. These limits can be determined only by statute.'
The Need for a Code of Laws
Franceís need for a single, unified code of laws had been keenly felt even before the collapse of the ancien regime. After the Revolution, codification becoming not only possible but somewhat necessary. Powerful control groups such as the manors and the guilds had been destroyed; the secular power of the church had been suppressed; and the provinces had been transformed into subdivisions of the new national state.
Whereas southern France had inherited Roman law, northern France was ruled by a system based on Teutonic customary law. The two systems were fundamentally different. The laws differed not only from province to province but from town to town. Nor were the laws always rational. Louis XIV, the Sun King, had summed up his approach to lawmaking with his famous phrase 'It is legal because I wish it.'
The Napoleonic Code, therefore, was founded on the premise that, for the first time in history, a purely rational law should be created, free from all past prejudices and deriving its content from 'sublimated common sense'; its moral justification was to be found not in ancient custom or monarchical paternalism but in its conformity to the dictates of reason.
Idealogically, the first words of the Code appear in an entirely separate document, the fourth article of the 1791 Declaration of Rights of Man and the Citizen: 'The exercise of the natural rights of each man has no limits other than those that ensure to other members of society enjoyment of those same rights. These limits can be determined only by statute.'Prior to the French Revolution, laws based on the monarchís wish were the standard custom throughout continental Europe.
The French Revolution promised a new society based on rational principles, but the French seemed to find it easier to construct a new religion and a new calendar based on reason than to reform their jumble of laws. In 1789, no fewer than 366 local law codes existed in France itself, to say nothing of the wildly variant customs of the new territories which were to be annexed to the French Republic.
Under Napoleonís orders, the French Council of State led by Portalis, Tronchet, Preameneu and Maleville began to forge the new Code in 1800, a full 11 years after the project had first been discussed at the beginning of the French Revolution. The councilís goal was to compose a complete, logical guide to the entirety of French law, in a single volume that could be read and understood by any citizen. As such, concrete details and methods of enforcement were often omitted in favor of brevity. Article 146, governing the validity of a marriage, consists of a single sentence: 'There is no marriage when there is no consent.'
Another article covers even broader territory, stating: 'Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.' While such edicts are certainly open to interpretation, many have praised the humility of the authors in not presuming to have the answer to every situation. Others are impressed with the incredibly succinct nature of the Code: the French poet Paul Valery described the Civil Code as the greatest book of French literature.
The Codeís final draft was divided into three main sections (Of Persons, Of Property and Different Modifications of Property, Of the Different Modes of Acquiring Property) and contained a total of 2,287 articles. It was issued as the French Civil Code in 1804.
The extent of Napoleonís influence on the Code that bears his name is debated. The Code Napoleon was simply called the French Civil Code from 1804 until 1807, and in some ways this name is more appropriate. The Code was an expression of the laws and morals of the French nation as a whole, not the personal work of Napoleon. Indeed, five drafts of a new code of laws had already been written when the Council of State started work on the final version of the Code in 1800, and even this preliminary work had roots in centuries-old French custom.
While Napoleon can certainly not be considered the author of the Code, he was the dynamic force that brought it about. Napoleon presided at 36 of the 84 council sessions devoted to the creation of the Code, and made many observations and contributions. Further, Napoleon rested the existence of the Code on his own authority, beginning the document with the words ďthe laws are executory throughout the whole French territory, by virtue of the promulgation thereof made by the first consulĒ and concluding with the signature 'Bonaparte, First Consul'.
Napoleonís hand can be detected in the Codeís balance between reason and realism. Like the French Revolution itself, the Code began on an entirely rational basis, but under Napoleonís direction became more of a compromise between rationalism and tradition. While Napoleon largely embraced the principles of the Enlightenment, he also harbored a personal dislike of feminine influence on society and a commitment to the family as the basic unit of French society.
So while the new Code permitted divorce, to the great discomfort of Pope Pius VII, it was made a long and difficult process, only practicable after two years of marriage and not more than 20. The Code stated in no uncertain terms that the wife owed her husband obedience, and wives were forbidden from selling, giving, mortgaging or buying property. A son under 30 had to notify his parents of his intention to marry three times, and a son under 25 could not marry without his parentsí blessing.
Lasting Effects of the Code
Despite some elements of French cultural imperialism within the Code, such as article eight, which states 'Every Frenchman shall enjoy civil rights', most of the tenets of the Code could be easily exported beyond French borders. Under Napoleonís leadership, the Empire of the French extended its influence over most of continental Europe. Whereas some areas, such as the Low Countries, Switzerland, Dalmatia, northern Italy and western Germany were annexed to France, other countries were made client states or French allies.
Wherever possible, the Code Napoleon was introduced into friendly states, even into states that remained absolute monarchies. In 1808, Napoleon urged the kings of the Confederation of the Rhine to apply it in their states. As Napoleon wrote to his brother Jerome, the king of Westphalia, 'In Germany, as in France, Italy and Spain, people long for equality and liberalism. The benefits of the Code Napoleon, legal procedure in open court, the jury, these are the points by which your monarchy must be distinguishedÖ.Your people must enjoy a liberty, an equality unknown in the rest of Germany.'
In a slightly less idealistic and more practically-minded communication to his brother Joseph, the king of Naples, Napoleon wrote that with the Code 'there will no longer be any great estates apart from those you create yourself. This is the motive which has led me to recommend a civil code and establish it everywhere.'
The influence of the Code was not limited to those states allied with the French. Just as Napoleonís military opponents often adopted his tactics in order to defeat him, so did Franceís enemies find it necessary to improve the efficiency of their administration in order to compete with France. Feudalism, the system of financial and judicial privileges under which most of continental Europe had existed for centuries, was near universal at the beginning of Napoleonís reign, and practically non-existent at the end.
In accordance with the principles of the French Revolution, but in defiance of powerful knights and barons across Europe, the concept of privilege (literally, 'private law') was not acknowledged in any article of the Code Napoleon. Attacking the concept of feudal dues directly, the Code states that persons cannot have a personal duty to a thing, and thus a servant cannot be bound to land. An article of the constitution for the newly-created Grand Duchy of Warsaw stated Napoleonís position succinctly: 'Serfdom is abolished.'
In most areas where the Code was introduced, it was embraced, and survived Napoleonís personal downfall. Waterloo did not end the application of the Code in Europe, particularly in western Germany, northern Italy and the Low Countries. In the Netherlands, the Code survived unaltered until 1838, whereas in Prussia the Code was gradually reintroduced. Even in areas where French rule had been unpopular, such as Spain, post-Napoleonic governments were held up to French standards for a codified law based on judicial equality.
Following the restoration of the old order, a series of 1820 revolts in Naples, Piedmont and Spain were touched off by demands for administrative reform. Within France itself, the Code survived virtually unaltered for more than 150 years, and even today has not been fundamentally changed. In many ways, the Code was the most enduring legacy of the French Revolution.
Excerpts from the Code Napoleon
Of the Enjoyment and Privation of Civil Rights
Of the Enjoyment of Civil Rights
7. The exercise of civil rights is independent of the quality of citizen, which is only acquired and preserved conformably to the constitutional law.
8. Every Frenchman shall enjoy civil rights.
9. Every individual born in France of a foreigner, may, during the year which shall succeed the period of his majority, claim the quality of Frenchman; provided, that if he shall reside in France he declares his intention to fix his domicil in that country, and that in case he shall reside in a foreign country, he give security to become domiciled in France and establish himself there within a year, to be computed from the date of that undertaking.
10. Every child born of a Frenchman in a foreign country is French. Every child born in a foreign country of a Frenchman who shall have lost the quality of a Frenchman, may at any time recover this quality by complying with the formalities prescribed in the ninth article.
11. A foreigner shall enjoy in France the same civil rights as are or shall be accorded to Frenchmen by the treaties of that nation to which such foreigner shall belong.
12. The foreigner who shall have married a Frenchman, shall follow the condition of her husband.
13. The foreigner who shall have been permitted by the government to establish his domicil in France, shall enjoy in that country all civil rights so long as he shall continue to reside there.
14. A foreigner, although not resident in France, may be cited before the French courts, to enforce the execution of engagements contracted by him in France with a Frenchman; he may be summoned before the tribunals of France, on account of engagements entered into by him with Frenchmen in a foreign country.
15. A Frenchman may be summoned before a French court, for engagements contracted by him in a foreign country, though with a foreigner.