The Napoleonic Code (), officially the Civil Code of the French (; simply referred to as ), is the French civil code established during the French Consulate in 1804 and still in force in France, although heavily and frequently amended since its inception. Although Napoleon himself was not directly involved in the drafting of the Code, as it was drafted by a commission of four eminent jurists,Robert B. Holtman, The Napoleonic Revolution (Baton Rouge: Louisiana State University Press, 1979) he chaired many of the commission's plenary sessions,. and his support was crucial to its enactment.Roberts, Andrew, Napoleon: A Life,"Lawgiver"
The code, with its stress on clearly written and accessible law, was a major milestone in the abolition of the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world. The Napoleonic Code was not the first legal code to be established in a European country with a civil-law legal system; it was preceded by the (Bavaria, 1756), the (Prussia, 1794), and the West Galician Code (Galicia, then part of Austria, 1797). It was, however, the first modern legal code to be adopted with a pan-European scope, and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars.29 - The French Revolution and the Law, in Part IV - The Age of Reforms (1750–1814), Cambridge University Press, 31 July 2017; Antonio Padoa-Schioppa, Translated by Caterina Fitzgerald The Napoleonic Code influenced developing countries outside Europe attempting to modernize and defeudalize their countries through legal reforms, such as those in the Middle East, while in Latin America the Spanish and Portuguese had established their own versions of the civil code.
History The categories of the Napoleonic Code were not drawn from earlier French law, but instead from Justinian's sixth-century codification of Roman law, the Corpus Juris Civilis, and within it, the Institutes. The Institutes divide into the law of:
persons things actions.
Similarly, the Napoleonic Code divided the law into four sections:
persons property acquisition of property civil procedure (moved into a separate code in 1806).
Prior codification attempts Before the Napoleonic Code, France did not have a single set of laws; law consisted mainly of local customs, sometimes officially compiled in "custumals" (coutumes), notably the Custom of Paris. There were also exemptions, privileges, and special charters granted by kings or other feudal lords. With the Revolution, the last vestiges of feudalism were abolished.
Specifically, as to civil law, the many different bodies of law used in different parts of France were to be replaced by a single legal code. The Constituent Assembly on 5 October 1790 voted for a codification of French laws, the Constitution of 1791 promised one, and the National Assembly adopted a unanimous resolution on 4 September 1791 providing that "there shall be a code of civil laws common for the entire realm."Constitution of 3 September 1791, 1.11: "Il sera fait un Code de lois civiles communes à tout le Royauame". However, it was the National Convention in 1793 which established a special commission headed by Jean-Jacques-Régis de Cambacérès to oversee the drafting process.Cronin, Vincent (1972). Napoleon Bonaparte. An Intimate Biography. pp. 176, 193, 283
His drafts of 1793 (for which Cambacérès had been given a one month deadline), 1794, and 1796 were all rejected by a National Convention and the French Directory of the time was more preoccupied with the turmoil resulting from various wars and strife with other European powers. The first draft contained 719 articles and was very revolutionary, but was rejected for being too technical and criticized for not being radical or philosophical enough. The second, with only 297 articles, was rejected for being too brief and was criticized for being a mere manual of morals. The third, expanded to 1,104 articles, was presented under the conservative Directory regime, but never even came up for discussion.
Another commission, established in December 1799 established a fourth outline drafted in part by (1754–1813). Jacqueminot's draft, the so-called loi Jacqueminot, dealt almost exclusively with personsEric Descheemaeker, The Division of Wrongs: A Historical Comparative Study (Oxford: Oxford University Press, 2009), 128. and emphasized the need to reform the divorce laws, to strengthen parental authority and increase the testator's freedom to dispose of the free portion of his estate.Tom Holmberg, "The Civil Code: an Overview", The Napoleon Series, September 2002, [online] <https://www.napoleon-series.org/research/government/code/c_code2.html>. It was rejected.
Napoleonic reforms Napoleon's victory at the Battle of Marengo allowed him to consolidate his power in France.Hollins, Encyclopedia, pp. 605–606. Returning to Paris, he appointed on 12 August 1800 a commission of distinguished jurists and politicians, including Jacques de Maleville, François Denis Tronchet, Félix-Julien-Jean Bigot de Préameneu, Jean-Étienne-Marie Portalis to draft a civil code.Zamoyski, Adam, Napoleon: A Life,"Caesar" For this commission, Cambacérès (now Second Consul), and Napoleon himself chaired the plenary sessions. After this process finished, the Code was sent to the Legislative Body as a preliminary bill in December 1801, where it was rejected by a vote of 142 to 139.. In response, Napoleon announced on 2 January 1802 that he was suspending all projects, effectively closing the assemblies' sessions; simultaneously, he went to the Sénat conservateur to berate its members. These tactics cowed the legislature into submission, and gave Napoleon the majority he needed.Zamoyski, Adam, Napoleon: A Life,"Peace" The code finally came into effect on 21 March 1804..
The process developed mainly out of the various customs, but was inspired by Justinian's sixth-century codification of Roman law, the Corpus Juris Civilis and, within that, Justinian's Code (Codex). The Napoleonic Code, however, differed from Justinian's in important ways: It incorporated all kinds of earlier rules, not just legislation It was not a collection of edited extracts, but a comprehensive rewrite Its structure was much more rational It had no religious content It was written in the vernacular
The Napoleonic Code marked a fundamental change in the nature of the civil law legal system, making laws clearer and more accessible. It also superseded the former conflict between royal legislative power and, particularly in the final years before the Revolution, protests by judges representing views and privileges of the social classes to which they belonged. Such conflict led the Revolutionaries to take a negative view of judges making law.
This is reflected in the Napoleonic Code provision prohibiting judges from deciding a case by way of introducing a general rule (Article 5), since the creation of general rules is an exercise of legislative and not of judicial power. In theory, there is thus no case law in France. However, the courts still had to fill in the gaps in the laws and regulations and, indeed, were prohibited from refusing to do so (Article 4). Moreover, both the code and legislation have required judicial interpretation. Thus a vast body of case law has come into existence, but without any rule of stare decisis.
Contents of the Napoleonic 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 then only if they had previously been officially published (including provisions for publishing delays, given the means of communication available at the time). In brief, no secret laws were authorized. It prohibited ex post facto laws (i.e. laws that apply to events that occurred before their introduction). The code also prohibited judges from refusing to do justice on grounds of the insufficiency of the law, thereby encouraging them to interpret the law. On the other hand, it also prohibited judges from making general judgements of a legislative nature (see above).
With regard to family, the code established the supremacy of the husband over his wife and children, the status quo in Europe at the time. Women had even fewer rights than children. Divorce by mutual consent was abolished in 1804."The Code Napoléon: French Legislation on Divorce," Exploring the European Past: Texts & Images, Second Edition, ed. Timothy E. Gregory (Mason: Thomson, 2007), 62–64.
Other French Napoleonic-era codes The draft Military Code was presented to Napoleon by the special commission headed by Pierre Daru in June 1805; however, as the War of the Third Coalition progressed, the code was put aside and never implemented.
In 1791, Louis Michel le Peletier de Saint-Fargeau presented a new criminal code to the National Constituent Assembly. He explained that it outlawed only "true crimes", and not "phony offences created by superstition, feudalism, the tax system, and [royal] despotism"."ces délits factices, créés par la superstition, la féodalité, la fiscalité et le despotisme" (id., p. 325). He did not list the crimes "created by superstition". The new penal code did not mention blasphemy, heresy, sacrilege, witchcraft, incest, or homosexuality, which led to these former offences being swiftly decriminalized. In 1810, a new criminal code was issued under Napoleon. As with the Penal Code of 1791, it did not contain provisions for religious crimes, incest, or homosexuality. After an overhaul of the entire legal system, the new code of civil procedure was adopted in 1806. The commercial code () was adopted in 1807.Code de commerce Retrieved 2011-12-30 The kernel of the commercial code is the Book III, "Of The Different Modes of Acquiring Property", of the Napoleonic Code, which sets out norms for contracts and transactions. Code d'instruction: In 1808, the code d'instruction criminelle was published, laying out criminal procedure. The parlement system from before the Revolution, had been much abused, and the criminal courts established by the Revolution were complex and ineffective, subject to many local pressures. The genesis of this code resulted in much debate and the basis of the modern inquisitorial system of criminal courts in France and many civil law countries. It has significantly changed since, especially with regard to the rights of the defendant. Adhémar Esmein, A History of Continental Criminal Procedure (1913) pp. 528–616. online
The French Revolution's Declaration of the Rights of Man and of the Citizen enunciated the presumption of innocence until found guilty. Concerned by the possibility of arbitrary arrest and detention, or excessive remand, Napoleon remarked that care should be taken to preserve personal freedoms, especially before the Imperial Court: "these courts would have a great strength, they should be prohibited from abusing this situation against weak citizens without connections." However, remand still was usual for defendants suspected of serious crimes such as murder.
The possibility of lengthy remand periods was one criticism—particularly voiced in common law countries—of the Napoleonic Code. Another concern was the combination of magistrate and prosecutor into a single role. However, once the work of the juge d'instruction was completed, the trial itself followed the principle of presumption of innocence; for example, the juror's oath explicitly required jurors not to betray the interests of the defendants or ignore their defense.