CODIFICATION, AN HISTORICAL APPROACH:
TWO CENTURIES OF EVOLUTION OF THE FRENCH CIVIL CODE

Translation: Scottish Committee FBLS (Scotland)
Under the supervision of David Guild

Napoleon Bonaparte, looking back over his legendary career from his exile in St Helena, was able to say: “My true glory didn’t come from winning forty battles; Waterloo will erase the memory of even so many victories; what nothing will erase, what will live forever, is my Civil Code”. [1] Bonapartist propagandists saw this too. Many of the tableaux featuring the Emperor put the Code along with the weaponry symbolising his various victories; [2] while a Napoleonic “Codolatry” developed, sometimes of dubious aesthetic taste. One Imperial magistrate, Decomberousse, wrote a rhyming version of the Civil Code and had no hesitation in proclaiming, by way of an epistle to the Empress, Marie-Louise:

“Your husband, the great Napoleon,
Inspired the Code his name is on
He laid down laws of wisdom deep,
Whose precepts all the world should keep,
Outshining the heroes of old as conqueror
Outshining them too as law-giver.” [3]

In spite of such propaganda excesses, Napoleon Bonaparte could be proud of the Civil Code, in the adoption of which he had been largely instrumental, thereby putting himself in line of succession to the great sovereign conquerors and law-givers of antiquity, like Hammurabi, King of Babylon, or Justinian, the Byzantine Roman Emperor.

The France of the Ancien Regime knew a law that was largely fragmented, in particular between the customary law applying in the North of the country and the Roman law of the South. This fragmentary nature offended the developing national consciousness and acted as a brake on economic relations. Voltaire, for instance, railed against it in a passage that became famous: “In France a postal courier changes laws more often than he changes horses.” [4] So arose that desire to have a single law, applying throughout the realm, which infused the lists of grievances drawn up on the occasion of the convocation of the Estates General in 1789. On 16 August 1790 the Constitutive Assembly decided that there should be a general code of laws which were to be “simple, clear and constitutionally appropriate”. But the chronic political instability of the revolutionary period did not allow the project to be realised, even though it was taken up by the various revolutionary assemblies. It became what historians called “the impossible Civil Code”. [5]

The “Consulate” gave France a period of political stability favourable to the adoption of a code and on 13 August 1800 Napoleon asked a four-member commission (of whose members Portalis is the best known) to prepare a draft. The draft was ready in four months. It was based on draft codes that had been put forward previously, especially the Cambaceres drafts. The First Consul had it voted through, but only after triumphing (not without difficulty) over opposition from the “Tribunate”, a Consular assembly that contained some of his fiercest adversaries (the opportunity being taken to purge them) and a Law of 21 March 1804 enacted thirty six pieces of legislation, gathered together in a “Civil Code of the French Nation”, which repealed the old laws.

From its enactment, this Civil Code was to have a tormented history, passing, as the years rolled on, through a period of crisis (I, below) and then of renewal (II).

As Chamfer wrote in his Maximes; “To avoid life becoming unbearable, there are two things to which one must become accustomed,: these are the assault of time and the injustices of men” The Civil Code has known the injustices of men, suffering an undoubted political crisis (A) and even more the assault of time, in the form of a technical crisis (B).

(A) A POLITICAL CRISIS

The Civil Code reflects an extraordinary will of political compromise between the ideas of the Ancien Régime and those of the Revolution, as witnessed by the composition of the Commission charged with its drafting. For example, Tronchet, one of the members of that Commission, had been one of the defenders of Louis XVI at his trial, while other members of the Commission had been members of a variety of revolutionary assemblies. The Civil Code finds its inspiration in a number of schools of thought which preceded the Revolution and in some which gave rise to it. But, as with all texts which are based in compromise, the Civil Code found itself attacked by those on the extremes – the partisans of the Ancien Régime and the convinced revolutionaries. Amongst the former, for example, Montlosier criticised the Code for being too revolutionary, while others criticised it for undermining the traditional family. Balzac, a follower of the latter school of thought, does not hesitate to relay these criticisms in La Comédie humaine. Thus, in Le curé du village he criticises individualistic principles which undermine the family and the equality of succession between children, which led to the division of estates. The convinced revolutionaries criticised the Civil Code for being too authoritarian and for sacrificing the interests of the weakest, such as women or workers, a vision of the Code which manifested itself in the Marxist interpretations of the Code which were being written from the end of the 19^th century.

However, those philosophical and political criticisms remained largely a minority view. The Civil Code has survived political changes which have affected only its title: Code civil des Français in its original version, it became the Code Napoléon with the First Empire, then once again Code civil des Français with the Restoration, and finally, under the Second Empire, Code Napoléon, which has remained its official title since then. On the Restoration, Louis XVIII thus retained the Civil Code, confining himself in 1816 to the suppression on religious grounds of the divorce provisions which the Code had introduced.

That successful political acclimatisation, despite attacks from both extremes of political life, can be ascribed to the great qualities of the Civil Code, both in substance and in form. In terms of substance, the ideas underlying the Civil Code – economic liberalism and social conservatism – reflected the dominant thinking of the time and were in perfect harmony with the new society which emerged from the Revolution. In terms of form, the style of Civil Code is clear and precise, giving rise to few disputes on its interpretation. The beautiful language of the Civil Code even led Stendhal to say “In composing la Chartreuse [de Parme] in order to find the right tone, I would from time to time read a few pages of the Civil Code”. [6] The great qualities of the Civil Code also explain its influence abroad from the first years after its adoption. Imposed by force of arms in the wake of the imperial army, the Civil Code was imposed by the forces of reason in Europe and in numerous countries across four continents.

This success of the Civil Code was reflected in legal writing by the triumph of what is known as the Ecole de l’Exégèse. For those writers, the Civil Code was to be venerated in the same way as theologians revere sacred texts. The Civil Code contains all the precepts of civil law: every problem must be capable of resolution by reference to the letter of the law. “The whole law… and nothing but the law. That was the watchword of the teachers of the Napoleonic Code,” [7] Aubry, one of the writers belonging to this school of thought, tells us. The most eloquent illustration of this cult devoted to the Civil Code may be found in the scheme of work of the authors of the Exégèse, which follows scrupulously, article by article, the numbering of the Civil Code.

If the political crisis which threatened the Civil Code was, then, quickly defused, the same could not be said for the technical crisis, which was a more substantial threat.

As we have seen, the Civil Code reflected the state of mind and concerns of rural France in 1804. But at least in three respects it showed itself to be less well adapted to the France which developed out of the Industrial Revolution from the 1830s.

First, the Civil Code, conceived for a rural France, contained only two articles on contracts of employment, compared with thirty one which governed le bail à cheptel - the hiring of working farm animals! That omission came sharply into focus with the rapid expansion of the industrial revolution at the end of the 19^th century.

Secondly, the family relationships reflected in the Civil Code, inspired by the model of the Roman family, gave the paterfamilias complete control over his wife and children. Societal changes, in particular the emancipation of women, meant that such one-sided domination was no longer acceptable.

Finally, the Civil Code gave supremacy to immoveable property over moveable property, influenced by Roman Law in which moveables were of little value – Res mobilis, res vilis. But the growth of commercial companies as a result of the industrial revolution transformed the structure of wealth; shares and bonds assumed as important a role as landed property.

The public authorities attempted to fill these gaps. Employment law developed rapidly, with the first steps dating from the end of the Second Empire, even though it did not develop substantially until the Third Republic; for example, the Law of 21 March 1884 recognising the freedom of association of workers, the Law of 9 April 1898 requiring an employer to insure his employees against the risk of injury at work, the Law of 20 June 1936 instituting a week’s paid holiday, the Law of 21 June 1936 limiting the working week to forty hours. The importance of moveable property, the increasing value of shares and bonds was recognised by a Law of 24 July 1867 which was the first coherent package of measures for commercial companies. Lastly, in the field of family relationships, paternal power had been restrained since the end of the nineteenth century and married women partially freed from the authority of their husbands: the Law of 18 February 1938, supplemented by the Law of 22 September 1942, gave them full legal capacity. But the Civil Code remained in crisis notwithstanding those legislative developments. They were selective and tended to be made on the fringes of the actual structure of the Code. This practice of making laws outside the Code, which threatened it with becoming a monument to dead law, is evocatively known as “de-codification.” [8] In the first years of the 20^th century, whole areas of civil law passed it by, being instead the subject of special legislation, such as the law of associations and the law relating to insurance.

At the same time, that decline of the Civil Code favoured the evolution of judge-made law, with the courts assuming the legal authority left, as it were, in abeyance by an ageing Code. Thus, a series of major decisions of the Cour de Cassation from 1880 to 1945 had a profound effect on French civil law. They include the adoption of the general principle of liability for damage caused to things under one’s care. Article 1382 of the Civil Code provided that if a victim wished to obtain damages as a result of an accident, he required to prove fault on the part of the person who caused the injury. That approach was no longer appropriate with the development of machines and the motor car: a worker or a pedestrian would find it difficult to establish fault on the part of the driver or his employer and thus risked losing all right to recover damages. To remedy that problem, the Cour de Cassation purported to discover a general principle of strict liability in Article 1384(1) of the Code, a provision which had plainly been drafted without that aim in mind, thereby removing the need for the victim to prove fault on the part of the owner of the thing which had caused the injury. During that period, the courts also developed the principle of unjustified enrichment, under which a person who has enriched himself unjustly to the detriment of another must indemnify him, [9] and the theory of the abuse of rights, under which an owner who abuses his rights may be found liable in damages. [10]

That technical crisis extended to the field of academic research, with the decline of the Ecole de l’Exégèse. The value of the law should not be overestimated; the law could not anticipate all the difficulties which it would be called upon to govern. Henceforth, writers took the view that where a part of the Civil Code gave rise to difficulties, its interpretation might be based in equity, history or sociology, thus dispensing with the letter of the law. That approach is reflected in the name of free scientific research given to that new school of thought, which was launched by François Gény who summarised it in a expression which became famous: “By the Civil Code, but beyond the Civil Code”. [11]

As with the crisis described above, which gave rise to it, the renewal of the Civil Code occurred both on a technical level (A) and on a political one (B).

On Liberation in 1945, an overhaul of the Civil Code appeared to be indispensable, but work on recodification was not completed, being given little support by a political machine bogged down in quarrels among politicians. The renewal of the Civil Code started with reforms to the law of persons and family law, subject by subject, from the 1960s. The success of those reforms owes a great deal to their incorporation into the structure itself of the Civil Code and to their unity of inspiration, having been conceived for the most part by Carbonnier. Reforms were thus introduced by nine laws passed in a short space of time, called the “Nine Sisters” or the “Nine Muses” according to the elegant formula of the master draftsman, Carbonnier himself. [12] These addressed the status of minors without capacity (Law of 14 December 1964), the status of adults without capacity (Law of 3 January 1968), ante-nuptial property agreements (Law of 23 December 1965), adoption (Law of 11 July 1966), parental authority (law of 4 June 1970), succession (Law of 3 July 1973), paternity (Law of 3 January 1972), divorce (Law of 11 July 1975) and mental incapacity (Law of 28 December 1977).

The impact of those reforms extended beyond their immediate field, which was restricted to the law of persons and family law. They brought about a “peaceful revolution in contemporary civil law". [13] Indeed, those reforms foreshadowed a new type of legislation, dominated by several characteristics.

The first of those characteristics was undoubtedly the decoupling of the law from other societal rules, such as religion or morality. For example, until the Law of 11th July 1975 on the reform of divorce, adultery was a criminal offence, punishable by fine. The new law adopted the approach that the penalty for adultery should be of a moral or religious order, and not a legal one, and abolished the criminal sanction.

The second characteristic of those reforms lay in the desire for the legislation to offer a series of alternative legislative models; each individual was given the right to choose his family model, and each was given the right to choose his legal model. Taking divorce again as an example, until 1975 divorce was only permitted on ground of fault, which could force spouses wishing to separate to become involved in unnecessary conflict. The Law of 1975 therefore laid down several grounds of divorce: as well as divorce on grounds of fault, divorce by mutual consent was introduced, as was divorce by reason of breakdown of marital relations, and divorce applied for by one party and accepted by the other. The latter was called Catholic divorce as it allowed a spouse simply to agree to an application for divorce brought by his or her partner without having to play an active part in the proceedings, leaving the defender with a clean conscience.

Lastly, the use of benchmarks in those reforms gave the courts a discretionary role. In divorce, for example, "the interests of the children" were to determine the consequences of divorce in their regard, particularly as regards which of their parents they were to live with. The test being broadly expressed, it became possible for the courts to assess the child’s interests on a case by case basis.

That new legislative style which has contributed so well to the renewal of the Civil Code has, for good or for ill, inspired the "reforms of the reforms" in family law from the 1990s [14] and the recent reform of the law of succession by the law of 3 December 2001, together with the reform of the law of gifts, proposed by Carbonnier shortly before he died. [15] The basis exists for the future renewal of other parts of the Civil Code, adopting the same approach and using the same methodology. Thus, a reform of the law of obligations in the Civil Code, under the direction of Professor Catala, is currently being undertaken.

The textual renewal of the provisions of the Civil Code also favoured its political renewal. At the beginning of the 20^th century, the celebration of the centenary of the Code crystallised a latent consensus in favour of the Code. That consensus was all the stronger as it arose at the same time as the appearance of the Prussian civil code, the BGB, against a background of legal and political rivalry between France and Prussia. The French rallied behind their Code, which they brandished like a flag in the face of the Prussian enemy which had just adopted its own. The patina of time slowly conferred an aura of sanctity on the articles of the Civil Code. The Civil Code was gradually seen to represent the whole corpus of French law and even, more generally, the fundamental values which bound French society together. An important work published several years ago under the direction of the sociologist Pierre Nora thus termed the Civil Code a French “heritage site”, in the same way as for example, the Chateau de Versailles, the French flag or the Marseillaise, sharing with them the singular destiny of being a focal point for violent and contradictory passion, before becoming unchallenged and accepted parts of the national heritage.

The aura of the Civil Code has sheltered it from the vast contemporary codification movement which, in the ascendance since 1989, aims to combine all current French law in some 60 codes, to be compiled by the Commission supérieure de codification. That symbolic aspect of the Civil Code is best understood through a concrete example. When, in 1999, the French Parliament debated the possibility of recognising homosexual partnerships, it would have been possible to dispose of the question simply simply by enacting specific provisions granting social security benefits to a homosexual partner, or allowing him to succeed to the tenancy of a deceased partner. But the pressure groups did not consider that to be enough; they also wanted the rules applying to PACS (civil partnerships) to be extended to recognise homosexual couples in the Civil Code itself, thereby placing them on the same footing as a married couple. The Law of 15 November 1999 thus introduced a new title in to the Book I of the Civil Code, headed “Civil Partnerships” (PACS – Du pacte civil de solidarité et du concubinage). [16]

Since the Civil Code is currently undergoing both a technical and a political renewal, its second centenary therefore falls at a very good time. The threats to the Civil Code therefore do not come from within but rather from outside, in particular from the planned European Civil Code which could result in its disappearance. The European Institutions have been agitating more or less explicitly for some time for the drawing up of a European Civil Code, or at the very least a European Code of obligations and contracts. Those initiatives are being taken forward by several groups of academics from different member states of the European Union who are working to develop such a Code: for example the Von Bar Group, the Lando Commission and the Gandoffi Commission.

If those debates seem stimulating and may among other things contribute to the renewal of our Civil Code, the drafting of a European Civil Code seems premature in so far as the political future of Europe is not yet clear. A code represents the product of a nation and it is by no means certain that the European nation has today a sufficiently clear identity to have its own code. Therefore, the French Civil Code although two hundred years old, still has a bright future, in France as abroad, in that it constitutes one of the most effective vehicles for the dissemination of French culture and French-speaking culture throughout the world.

[1] De Montholon, Récit de la captivité de l’Empereur Napoléon, Title. 1, p. 401.
[2] Cf., for example, the painting by J.-B. Mauzaisse, Napoléon writing the Code Civil (1808, La Malmaison, Musée de Bois-Préau).
[3] The Code Napoleon in French verse by B.-M- Decomberousse, député to the National Convention, Président du Conseil des Anciens, Conseiller à la Cour impériale de Paris, Paris, 1811.
[4] Précis du siècle de Louis XV, Chater 42, Title 15, p. 426.
[5] Title of the leading work by J.-L. Halperin, PUF, 1992.
[6] Correspondance, Title 3, La Pléïade, Gallimard, p. 399, letter to Balzac.
[7] Rapport sur l’enseignement dispensé dans les Facultés, 1857.
[8] See, in that regard, R. Cabrillac, Les codifications, PUF, 2002, p. 114 et seq.
[9] Req. 15 June 1898, DP 1892, 1, 596, S 1893, 1, 281, note LABBE.
[10] Req. 3 August 1915, DP 1917, 1, 79.
[11] F. Geny, Méthodes d’intrpretation et sources en droit privé positif, ed. 1954, LGDJ, no 186.
[12] J. Carbonnier, Essais sur les lois, Defrénois, 2^nd ed., 1995, p. 19.
[13] G. Cornu, Droit civil, Introduction, Les personnes, Les biens, Montchrestien, 10th ed., 2001, no 301.
[14] Cf. J. Carbonnier, Droit et passion du droit sous la Vème République, Flamarrion, 1996, p. 195 et seq.
[15] J. Carbonnier, P. Catala, J. de Saint Affrique and G. Morin, Des liberalités, Une offre de loi, Defrénois, 2003.
[16] Article 515-1 et seq.