23.1.10: The Napoleonic Code

Legal System in France Before the Code

Napoleon set out to reform the French legal system in accordance with the ideas of the French Revolution. Before the Napoleonic Code, France did not have a single set of laws. Law consisted mainly of local customs, which had sometimes been officially compiled in “customals” (coutumes). There were also exemptions, privileges, and special charters granted by the kings or other feudal lords. During the Revolution, the last vestiges of feudalism were abolished and a new legal code was required to address changes in the social, economic, and political structure of French society.

Jean-Jacques Régis de Cambacérès led the drafting process of a single civil law code. His drafts of 1793, 1794, and 1799, however, were adopted only partially. When Napoleon came to power in 1799, a commission of four eminent jurists was appointed in 1800, chaired by Cambacérès (now Second Consul) and sometimes by the First Consul, Napoleon himself. The Code was complete by 1801, after intensive scrutiny by the Council of State, but was not published until 1804. It was promulgated as the Civil Code of the French (Code civil des Français), but was renamed the Napoleonic Code (Code Napoléon) from 1807 to 1815, and once again after the Second French Empire (1852-71).

The Napoleonic Code

Napoleon participated actively in the sessions of the Council of State that revised the drafts of the new civil code. The development of the code was a fundamental change in the nature of the civil law legal system as it stressed clearly written and accessible law. Other codes were commissioned by Napoleon to codify criminal and commerce law.

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 published officially (including provisions for publishing delays, given the means of communication available at the time). Thus, 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 justice on grounds of insufficiency of the law, thereby encouraging them to interpret the law. On the other hand, it prohibited judges from passing general judgments of a legislative value (more below). With regard to family, the Code established the supremacy of the man over the wife and children, which was the general legal situation in Europe at the time.

Praised for its clarity, the Code spread rapidly throughout Europe and the world in and marked the end of feudalism and the liberation of serfs where it took effect. The Code recognized the principles of civil liberty, equality before the law (although not for women in the same sense as for men), and the secular character of the state. It discarded the old right of primogeniture (where only the eldest son inherited) and required that inheritances be divided equally among all children. The court system was standardized. All judges were appointed by the national government in Paris.

The Napoleonic Code was not the first legal code to be established in a European country with a civil legal system. It was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (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 strongly influenced the law of many of the countries formed during and after the Napoleonic Wars. The Napoleonic Code was very influential in developing countries outside Europe, especially in the Middle East, that were attempting to modernize through legal reforms.

Significance and Lasting Impact

Although the Napoleonic Code was not the first civil code and did not represent the whole of Napoleon’s empire, it was one of the most influential. It was adopted in many countries occupied by the French during the Napoleonic Wars and thus formed the basis of the law systems of Italy, the Netherlands, Belgium, Spain, Portugal (and their former colonies), and Poland (1808–1946). In the German regions on the west bank of the Rhine (Rhenish Palatinate and Prussian Rhine Province), the former Duchy of Berg, and the Grand Duchy of Baden, the Napoleonic Code was in use until the introduction in 1900 of the first common civil code for the entire German Empire. A civil code with strong Napoleonic influences was also adopted in 1864 in Romania and remained in force until 2011.  The Code was adopted in Egypt as part of the system of mixed courts introduced in Egypt after the fall of Khedive Ismail (1879). In the Persian Gulf Arab states of the Middle East, the influence of the Napoleonic Code mixed with hints of Islamic law is clear even in Saudi Arabia (which abides more towards Islamic law). In Kuwait, for example, property rights, women’s rights, and the education system were seen as Islamic reenactments of the French civil code.

Thus, the civil law systems of the countries of modern continental Europe, with the exception of Russia and the Scandinavian countries have, to different degrees, been influenced by the Napoleonic Code. In the United States, whose legal system is largely based on English common law, the state of Louisiana is unique in having a strong influence from the Napoleonic Code and Spanish legal traditions on its civil code.

The development of the Napoleonic Code was a fundamental change in the nature of the civil law 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 revolutionaries to take a negative view of the judges and the judicial system. This is reflected in the Napoleonic Code provision prohibiting judges from deciding a case by way of introducing a general rule, since the creation of general rules is an exercise of legislative, not 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. Moreover, both the code and legislation have required judicial interpretation. Thus, a vast body of judicially-created law (jurisprudence) has come into existence. There is no rule of stare decisis (binding precedent) in French law, but decisions by important courts have become more or less equivalent to case law.

Attributions

• The Napoleonic Code
  • “Nepoleon.” https://en.wikipedia.org/wiki/Napoleon. Wikipedia CC BY-SA 3.0.
  • “Napoleonic Code.” https://en.wikipedia.org/wiki/Napoleonic_Code. Wikipedia CC BY-SA 3.0.
  • “Conseil d’État (France).” https://en.wikipedia.org/wiki/Conseil_d%27%C3%89tat_(France). Wikipedia CC BY-SA 3.0.
  • “History of France.” https://en.wikipedia.org/wiki/History_of_France. Wikipedia CC BY-SA 3.0.
  • “Code_Civil_1804.png.” https://commons.wikimedia.org/wiki/File:Code_Civil_1804.png. Wikimedia Commons Public domain.