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Modern developments of French codification

 Bénédicte Fauvarque-Cosson
 Professeur 
Université René Descartes-Paris V

June 2000

 For nearly two hundred years, codification has been part of the French legal system. The very heart of French law, and not only of civil law but also criminal law, commercial law, administrative law, is based upon major codes.  While Scottish jurists are discussing the opportunity of codifying Scottish law, the French have to face other difficulties, linked to recodification and decodification.  In both legal systems, those who purport codification point out the necessity of stating the law in a rational and coherent way.  However, the limits of codification, such as it was perceived during the Age of the Enlightment, are well perceived : by attempting to be exhaustive, most recent codes are far too detailed. This ruins the very notion of codification and raises great hostility, especially among Scottish judges who fear of being deprived of their powers in the law-making process. Moreover, the French experience of codification is often associated to the French Revolution and it is therefore  rejected for being too radical.

This article purports to show that such fears are not founded : the French experience of codification is not a product of the Revolution and it did not deprive French judges of their powers. Indeed, codification is useful for it brings in certainty and easy access to the law. However, it has evolved in such a direction that nowadays, the very notion of codification is controversial. For the past fifty years, all the French government's recent attempts of codification have provoked so much criticism that the whole process of codification was, until very recently, almost paralysed. In this respect, the French experience might shed some light as to what could be done and what ought not to be done.

A short historical introduction will explain the background of the French system. The current proposals for new codes will then be presented. Finally,  the opportunity of national codifications in an international changing world shall be discussed.

   I. Historical introduction

 The Code civil - or the Code Napoléon, as most British people call it, - "is the first and arguably the greatest of the civil codes. It is not only the heart of private law in France, but also the great model for the codes of private law of the whole Romanistic family". Had it been expressed by a French lawyer, this opinion would have seemed very chauvinistic; fortunatly, it comes from two German scholars, Zweigert and Kötz who give, in their  Introduction to comparative law, very detailed and useful information about codification in the Romanistic legal family[1]. Actually, the reason for the Code's success and fame was not - or not only- its inherent quality but also the fact that it was the first such code and the fact that Napoleon was a successful soldier, who conquered much of Europe and brought his legal system with him. But it was not of his army that Napoleon was most proud of. While in exile on St Helena, he made the following observation : "It is not in winning 40 battles that my real glory lies, for all those victories will be eclipsed by Waterloo. But my Code civil will not be forgotten, it will live forever"[2]. Two centuries later, his Code civil is still there, more alive than ever in this changing world.

 Perhaps it would be interesting to recall that the Code was drafted by a Commission of only four people - Portalis and three colleagues - over a period of time of only four years[3]. The Revolution had produced its own attempts at codification, but it failed to reach the consensus necessary to elaborate a coherent code. It was not until the concentration of political power in the hands of Napoléon that it was possible to create this code. The French experience shows that codification cannot succeed unless there is a strong and lasting government. Moreover, Napoléon took a personal interest in its drafting.

The Code is a blend of traditional legal institutions from the droit écrit of the South, influenced by Roman law, and the droit coutumier of the North, influenced by customary law. It is true that by the end of the eighteenth century, all the important customs of more than purely local significance had been recorded in accordance with the royal mandate. On the eve of the Revolution there were sixty customary laws of France, which constituted the droit coutumier commun. However, the division between  pays du droit écrit et pays du droit coutumier remained very important. This led to great criticism, and Voltaire's words have remained famous : "Is it not an absurd and terrible thing that what is true in one village is false in another ? When you travel in this kingdom, you change legal systems as often as you change horses"[4]. The creation of a unitary private law common to the whole of France was thus felt to be necessary. This common private law was first developped by some important French jurists : Dumoulin, Coquille, Domat, Pothier (1699-1772). Pothier is the lawyer who had the greatest influence on the drafstmen of the Code civil. In its substance, the Code has been influenced by the Revolution, but it also bears the heritage of the Ancien droit, the law that prevailed before the revolution. Moreover, Napoléon left many marks on the actual substance of the Code. He supported the idea of a strong patriarchal family. He also introduced divorce by mutual consent and adoption, on personal grounds : he knew that his marriage with Josephine de Beauharnais would remain childless.

 It is difficult to summarize, in a few sentences, the spirit and essential features of the Code civil. However, as far as the doctrine of the sources of law is concerned, some points should be noted. In this respect, the French experience might interest all those who feel concerned by the changes that codification could bring in regarding the relationship between the judge and the legislator. For fear of what had occurred in the Parlements under the Ancien Régime, the new system left very little space for judicial developments of law. During all the nineteenth century, the Code civil was the primary if not the exclusive source of law. As it became older, and thus outdated on some important points, the legislator and the judiciary became more and more influent. This was all the easier that the Code had avoided the danger of being too detailed.

A good exemple of this compressed legislative style of the Code civil which leaves room for judicial interpretation and creation of new rules is found in articles 1382-6 : five laconic paragraphs used to cover, until very recently, the entire law of torts. It is true that at the beginning of the nineteenth century, the law of torts was far less important ; its real evolution only started with accidents at work during the industrial period ; on the other hand, the Code civil dedicates more twenty one articles to intermediate fences, walls and ditche (clôtures, murset fossés mitoyens)

The Code civil is a masterpiece from the point of view of style and language. It has clear and memorable phrases and uses no technical jargon. This is why it became so famous among French writers.  Paul Valéry, has described it as "the greatest book of French litterature" and Stendhal used to read parts of it everyday in order to refine his feeling for the langage[5] On the other hand, Jules Romains, recommands reading it at night in order to fall asleep. I let you judge which of the two was the wisest.

 Almost 200 years later, the Code civil is still in force despite great economic political and social changes. How can this be ? In some areas, especially in family and inheritance law, the legislator has kept the Code in line with all these changes by altering its texts. But the courts have also played a leading role in adjusting the Code to modern requirements.

In fact, without our noticing it, the famous and striking opposition between the sources of law recognised by the Anglo-American and French law has been very materially reduced. Under nearly every provision of the Code there is a long list of references to case-law. This shows that even in codified systems, the legislature cannot pass law that cover all points necessary to keep pace with social and economic developments. This shows that the dichotomy between codification of the continental variety and case-law of the common law is not as fundamental as one could think. It is true that we do not have the  English theory that judges declare the law.  But first of all what is the real impact of this theory in Great-Britain ? Second, French case-law can be so influential or provocative that it may force the legislator to intervene. For instance, had it not been for some provocative cases, we would not have had the 1985 Act aimed at a better compensation of victims of Traffic Road accidents. Actually, year after year, this Act gives rise to a huge amount of litigation and case-law. This shows that Statute law does not impair the development of judge-made law. On the contrary, it may well be that the more detailed it is, the more it increases. So codification does leave scope for judicial and doctrinal innovation.

 The Code civil was the first of the French codes, but its success paved the way for the development of further codes. Just after the publication of the Code civil on March 21st 1804, the Code de procédure civile the Code de commerce, the Code pénal were adopted, respectively in 1906,1907 and 1810. Of course, as time went by, many changes were made, and a number of new codes have been introduced, covering a wide, but by no means exhaustive, range of public and private law. Some significant areas of law remain uncodified, including private international law. Three attempts were made ; they all failed. So case-law has long been the main source of French private international law (while in England, the main source of law is Statute law). But this is no longer true, due to the increasing amount of international conventions and EEC directives or regulations both in conflict of laws and conflicts of jurisdictions. So nowadays, the sources of French Private international law are all scattered around. Some specific matters are dealt with either by internal laws ( for instance the applicable law to divorce or affiliation) or by international conventions.  Thus, this branch of the law becomes more and more impenetrable. Indeed, a code on Private international law would be very useful. What kind of code should it be ? Should it change the existing law or should it only bring together all these different sources of law ? This leads me to a major question : what are the different types of codifications today ?

 II. Codification today

 When entering a French law library, you immediately find a colourful palette of codes : the red codes, the blue codes and the orange codes. This is only a question of who is the publisher. The red code are edited by Dalloz ; the blue and orange codes are edited by Litec. I identified no fewer than 29 codes, edited both by Dalloz and Litec, covering private and public law. The most important codes are reedited every year ; the others every other year. There are also the megacodes and the codes with CD-Rom, but these represent no more than a helpful legal publishing service.

 In this wide variety of codes, one can identify two types of codifications.

First, there is codification for the purpose of introducing new laws or major changes to the law. To codify means to modify. This is why it is called Codification innovation.  Good recent examples of this kind of codification are the new Civil code of Québec of 1991, and the new Dutch Civil Code of 1994 (the BurgerlijkeWetbook).

Unfortunately, In France, very few new codes amount to such a codification-innovation. The main such codes are the Code de procédure pénale (1958), the Nouveau code de procédure civile (still so called although aged 25), the Nouveau code pénal (which came into force in 1994).

 Secondly, there is codification for the purposes of consolidating existing disparate rules of law. We call it codification compilation or codification à droit constant.  It is drawn by government draftsmen, who review the existing disparate sources of statute law and put them together in a coherent form. This sort of code derives its legal authority from the statutory rules which compose it and from the power of the Government to effect the codification. It is the Parliament whichh delegates such power to the Government. This codification does not involve amendment to the law, but merely its re-ordering. It is like running the Scandisk and DeFrog programs on your computers. In modern French practice, this is the type of codification which is most usual. Many parts of French private and public law have thus been codified for the last fifty years.

The idea of such a consolidation is to make the law more coherent and more easily accessible to everybody. In theory, it seems excellent; in reality, it is not so simple. In spite of several attempts, there is still a long way to go. Today, there are more than 8000 Statutes and 90 000 regulations (textes réglementaires) in French law[6]. We are far from having them all codified, but there has long been a strong political will to do so.

 For the last fifty years, every government has expressed its willingness to codify the law.

In 1948, a decree instituted a Law Commission in charge of assembling  all statutory law. Its purpose was to simplify these texts, so as to facilitate the work in view of codification. For the first time, codification was due to include, not only statutory law, but also  decrees stating measures for the enforcement of the law (textes réglementaires). The aim was to achieve complete codification. Many codes came out : Code de la santé publique(1953), Code du travail (1973), Code de l'organisation judiciaire (1978)...

In 1989, the project was relaunched by a new decree which abrogated the former and instituted a "commision supérieure de codification chargée d'oeuvrer à la simplification et à la clarification du droit". However, for many years, no new code was adopted by the Parliament. In fact, the progress of codification was very frequently hampered by the "ordre du jour" of the Parliament. For instance, the "Code rural" has been prepared over more than twenty years. Eventually, a commission of the Assemblée nationale wrote a report in January 1999. It was "inscrit à l'ordre du jour" but had to be removed for lack of time to examine it.  Moreover, by the time some of these codes were examined, there were new Statutes, so that the code are out of date even before being enacted.

 Very recently, the Government  relaunched this very ambitious project.  A Statute dating from December 16th 1999 empowers the Government to proceed by way of Ordonnance (that is to say, without going through the process of a vote in Parliament). It is called the "Loi portant habilitation du Gouvernement à procéder, par ordonnances, à l'adoption de la partie législative de certains codes"[7]. This is a very efficient way of proceeding, since it enables the Governement to supersede the Parliament in its task of codifying the law. In fact, it is all the more spectacular as this authorisation has been granted for nine codes, including the Code de commerce. Each of these codes will be enacted by way of ordinance by the end of the year. Three of these codes - the Code rural, Code de l'éducation, Code de la santé publique -  were nearly ready by the time the Law was passed. They should give rise to an ordinance by the end of June. Then, in September, there will be the Code de commerce, Code de l'environnement, Code de justice administrative. Finally, in December, the Code de la route, Code de l'action sociale, Code monétaire et financier, are due to enter into force.

 This loi d'habilitation has led to much hostility. It was referred to the Conseil Constitutionnel by a group of members of Parliament - the Conseil Constitutionnel is in charge of making sure that the law is in conformity with the French Constitution-. The group alleged that such codes could only come into force if voted by the Parliament. According to them, the law would therefore be contrary to article 34 of the French Constitution which indicates the fields of law that are reserved to legislation. The Conseil Constitutionnel rejected their argument. Article 38 of the Constitution enables the government to proceed by way of ordinances, as long as a Statute habilitating the Government is approved by the Parliament[8]. Since the loi d'habilitation only allows the Government to operate slight changes for the purpose of harmonising the pre-existing law, this comes easily within the ambit of article 38.

 The great novelty of the new Law is the "validation législative". In order to understand this, one must be aware that most recent codes have two parts : a legislative part and a regulatory part (partie réglementaire), which often comes into force two or three years after the legislative part by way of decrees which are inserted in the Code[9].

For the past fifty years, the procedure which led to new codes was one of codification by decree. In other words, all the provisions of the code were necessarily regulatory provisions. This is why this codification has sometimes also been named codification administrative[10]. Consequently, it was not possible to repeal the initial statutory provisions by way of codification because Statute law cannot be superseded by decree. Therefore,  this codification led to two parallel sets of rules : the initial legislative provisions which could not be repealed by the code and the new codified ones, which had the status of regulatory provisions. This led to the greatest uncertainty. Such uncertainty weakened the procedure of codification. In order to avoid such consequences, some of these codes had been validated by the legislator, but not all of them. Under the 1999 Loi d'habilitation, the codified sections of the legislative part remain statute law. They can therefore abrogate previous statutory provisions. However, in principle, there should be no other modifications than those which are strictly necessary for the coherence of the law. Moreover, beyond the set time limits (June, September, December), the Government cannot any longer proceed by way of Ordinance ; in all the fields  reserved to Statute law, modifications should be carried out by the Parliament.

 Among the nine codes that are due to come into force, great controversies surrounded two of them : the Code de commerce and the Code monétaire et financier. I would like to say a few words regarding these two codes.

Only 100 articles out of the 700 of the aforementioned Code de commerce dating from 1807 have remained in force. This phenomenon is called decodification. Moreover, some major Statutes have remained out of the code. In 1993, a project of Code de commerce was adopted by the Sénat, but it was rejected by the Assemblée nationale, for two types of reasons : hostility against the very principle of a codification-consolidation and also because this code was considered archaïc since it did not deal with public owned corporations.This is why the Commission supérieure de codification has elaborated a new code : the Code monétaire et financier.

The Code de commerce is a code which sets up a general corpus of rules for company law. But it does not cover every type of company. In this respect, it is a code pilote which is to be followed by more specific codes called codes suiveurs. Also, the droit boursier has been excluded from its scope. It also excludes specific contracts on transport and this is why the former provisions of the Code de commerce on maritime transport, which are still in force, are not part of this new code. They should rather be inserted into a transport code.

The Code de commerce is being examined by the Conseil d'Etat and the ordinance will be signed on September 22nd. It contains 1725 articles, while the Code monétaire et financier is a little shorter. It will not come into force in September but in December 2000, due to the adoption of new laws in this domain. There is a specific provision in this code which authorizes some modification  of the existing law in order to harmonise the law. In fact, it gives greater power to the government.

 At first sight, this new wave of codification is very good thing. It allows to get rid of old rules that have become inadapted or archaïc; it brings in more coherence within the code and regarding its relationship with other codes; it sheds light on the modifications that remain to be made. Yet, the project has been subject to so much criticism, that it necessitates further discussion as to the opportunity of codification.

 III. The opportunity of codification

 Massive codification ; illusory codification ; dangerous codification : such are the terms that have been used by most eminent French scholars to describe the government's attempts to codify the law over the past fifty years[11]. Not only is this kind of codification incapable of reducing the volume of laws, but also, although the Government denies it, it alters the law, in substance and in style because the law is rewritten when it is considered necessary (with the result that it now is a real jargon). Not only are the codes incapable of facilitating the knowledge of the law, but they are deceptive since they give the illusion that all they enclose all the legal norms . Moreover, as soon as they come into force, they must be modified. Otherwise, they just become museum-codes. Where is the security in all this ?

For all these reasons, the most virulent opponents consider codification as a sign of the decline of the law (or regression)[12]. At least they derive consolation from the fact that those who are in the process of codifying the law, have no spare time to do anything more dangerous[13]. Why so much sarcasm ? Probably because the project is seen as being too ambitious.

For instance, the reporter in the French Sénat expressed the opinion that as soon as the government's program is achieved (if it is), France will be the only country in the world to have complete codification of its law. And the latter adds : This means that no legislator, from whatever country, would be able to engage in any reform without refering to the French codification[14].

Even the Conseil Constitutionnel cannot refrain its enthusiasm. Not only does it speak of accessibility and intelligibility but it also refers to article 6 of the French Déclaration des droits de l'homme et du citoyen which calls for equality among all citizens.  Thus, codification would satisfy an old (and revolutionary) dream : to have laws accessible to everybody, according to the famous maxim : "Nul n'est censé ignorer la loi" - Nobody should be ignorant of the law. But in fact, for the Conseil Constitutionnel, knowledge of the law is not so much an obligation which rests upon each citizen ; it is rather a right, even a Human right, that ought to be protected[15]. This change of direction can be seen in the consecration of a new principle : the principle of legal security (sécurité juridique).  

 Many objections immediately come to mind . What about case-law, which has become so important in the French legal system ? What about the fields in which there is no code and in which certainty and easy access to the law is just as crucial as in other matters ? What about international treaties and international case-law ? What about European law ? There are so many international and European rules that, inevitably, major laws remain outside the scope of national codes.

 The appraisal was too naïve ; the contempt is too violent. Codification by way of consolidation deserves neither such enthusiasm, nor such criticism.

It is however true that the very idea of codification, since the Age of the Enlightenment, is to systematize the body of rules, to introduce a certain hierarchy of principles and to underline the interdependance of the legal solutions. Ideally, a code should be drafted in a durable, principled and conceptual way. But it is also true that the mass of statute rules should be organised in a logical and lucid order. Therefore, it is not a bad idea to consolidate the law. The project is ambitious ; it does not solve all the problems, but it provides more security than "scattered legislation"[16]. It has many functional advantages, the first being that it is easy to use  -and, it is easy to change since reforming the law is sometimes easier than overruling cases, especially in the British system- . Of course, one should not expect too much from codification.  The legislator can never foresee all factual circumstances. Therefore, codes should not be too detailed, nor too rigid, so that they can adapt to the changing circumstances. In other words, codes can never stand alone. They are to be completed by cases, and even by detailed legislation on specific topics.

 As pointed out by Portalis in his Preliminary speech on the Code civil, codes should be expressed in conceptual terms and set forth general principles.

It may be worthwile to recall his own words, for they are very famous : "The task of legislation is to determine the general maxims of law, taking a large view of the matter. It must establish principles rich in implications rather than descend into the details of every question which might possibly arise. The application of the law belongs to the magistrate and the lawyer, steeped in the general spirit of the legislation... There is a legislative skill as well as a judicial skill, and the two are quite distinct. The skill of the legislator is to discover the principles in each area which most conduce to the common weal; the skill of the judge is to put these principles into action, and to extend them to particular circumstances by wise and reasoned application... National codes are created in the time; indeed, people do not really create them at all"[17].

 This should be borne in mind by all those who engage in the process of codification. The complexity of society makes Portalis' advice very difficult to follow. Nowadays codes are more often drafted to facilitate the knowledge of law (including case-law since the editors include references to case-law).

It results of the aforesaid that the countries who are willing to engage in the process of codification, should keep in mind these two types of codifications that have propoered in the French lagl system. The napoleonic type, that is to say codification-innovation and the recent type, much more controversial, that is to say codification-compilation. Both can coexist as long as a clear distinction is made[18]. This should lead to distinguishing between those domains of the law where general principles matters are needed and those which are so techical that detailed legislation is inevitble. In any case, none of these codes can embrace all the existing rules of law nor fix them forever[19] ; but all these codes, even the purely consolidating ones, can diminish insecurity and therefore reinforce the predictability of result.

 Along with the French experience of codification, a few words should be said of the international experience of codification, for the latter introduces a totally new concept : this is codification with no legal force, in other words, purely persuasive codification The Unidroit Principles on international commercial contracts or the European principles on contract law. These codifications originate from academics and are not meant to be ratified by the States.  This shows that the very concept of codification is broad and uncertain : not only are there different types of codifications, but also, their legal force remains to be determined. They are probably the best model for future codifications since they tend to elaborate a sort of basic jus commune. Indeed, these Principles operate as a model for future codificators and have been used on many occasions (although they are called Principles, these texts sometimes provide very detailed rules of law). This new phenomenon is worth noticing. In the past, codification led to exaggerated national pride. In that respect, the appearance of great national codes has destroyed the unity of law that Roman law had provided for. Nowadays, a comparative approach is adopted by most legislators when they codify their laws. In the future, national codes may loose their importance and codification could lead to international harmonisation by means of a European common code of private law. In 1989, the European Parliament passed a resolution "on action to bring into line the private law of the Member States". It requested "that a start be made on the necessary preparatory work on drawing up a common European Code of Private Law"[20]. The idea of a European common law has received strong backing by legal historians, by comparatists, especially by some German scholars. But those who support the idea are aware that it is a long term plan. Let us not forget Portalis' words: codes are created in the time.