1911 Encyclopædia Britannica/Code Napoléon
|←Code||1911 Encyclopædia Britannica, Volume 6
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CODE NAPOLÉON, the first code of the French civil law, known at first as the Code civil des Français, was promulgated in its entirety by a law of the 30th Ventose in the year XII. (31st of March 1804). On the 3rd of September 1807 it received the official name of Code Napoléon, although the part that Napoleon took in framing it was not very important. A law of 1818 restored to it its former name, but a decree of the 27th of March 1852 re-established the title of Code Napoléon. Since the 4th of September 1870 the laws have quoted it only under the name of the Code Civil.
Never has a work of legislation been more national in the exact sense of the word. Desired for centuries by the France of the ancien régime, and demanded by the cahiers of 1789, this “code of civil laws common to the whole realm” was promised by the constitution of 1791. However, the two first assemblies of the Revolution were able to prepare only a few fragments of it. The preparation of a coherent plan began with the Convention. The ancien régime had collected and adjusted some of the material. There was, on the one hand, a vast juridical literature which by eliminating differences of detail, had disengaged from the various French “customs” the essential part which they had in common, under the name of “common customary law”; on the other hand, the Roman law current in France had in like manner undergone a process of simplification in numerous works, the chief of which was that of Domat; while certain parts had already been codified in the Grandes Ordonnances, which were the work of d'Aguesseau. This legacy from the past, which it was desired to preserve within reason, had to be combined and blended with the laws of the Revolution, which had wrought radical reforms in the conditions affecting the individual, the tenure of real property, the order of inheritance and the system of mortgages. Cambacérès, as the representative of a commission of the Convention, brought forward two successive schemes for the Code Civil. As a member of one of the councils, he drew up a third under the Directory, and these projected forms came in turn nearer and nearer to what was to be the ultimate form of the code. So great was the interest centred in this work, that the law of the 19th Brumaire, year VIII., which, in ratification of the previous day's coup d'état nominated provisional consuls and two legislative commissions, gave injunctions to the latter to draw up a scheme for the Code Civil. This was done in part by one of the members, Jacqueminot, and finally under the constitution of the year VIII., the completion of the work was taken in hand. The legislative machinery established by this constitution, defective as it was in other respects, was eminently suited for this task. Indeed, all projected laws emanated from the government and were prepared by the newly established council of state, which was so well recruited that it easily furnished qualified men, mostly veterans of the revolution, to prepare the final scheme. The council of state naturally possessed in its legislative section and its general assembly bodies both competent and sufficiently limited to discuss the texts efficiently. The corps législatif had not the right of amendment, so could not disturb the harmony of the scheme. It was in the discussions of the general assembly of the council of state that Napoleon took part, in 97 cases out of 102 in the capacity of chairman, but, interesting as his observations occasionally are, he cannot be considered as a serious collaborator in this great work.
Those responsible for the scheme have in the main been very successful in their work; they have generally succeeded in fusing the two elements which they had to deal with, namely ancient French law, and that of the Revolution. The point in which their work is comparatively weak is the system of hypothec (q.v.), because they did not succeed in steering a middle course between two opposite systems, and the law of the 23rd of March 1855 (sur la transcription en matière hypothécaire) was necessary to make good the deficiency. A fault frequently found with the Code Civil is that its general divisions show a lack of logic and method, but the division is practically that of the Institutes of Justinian, and is about as good as any other: persons, things, inheritance, contracts and obligations, and finally, in place of actions, which have no importance for French law except from the point of view of procedure, privileges and hypothecs, as in the ancient coutumes of France, and prescription. It is, mutatis mutandis, practically the same division as that of Blackstone's Commentaries.
Of late years other objections have been expressed; serious omissions have been pointed out in the Code; it has not given to personal property the importance which it has acquired in the course of the 19th century; it makes no provision for dealing with the legal relations between employers and employed which modern complex undertakings involve; it does not treat of life insurance, &c. But this only proves that it could not foretell the future, for most of these questions are concerned with economic phenomena and social relations which did not exist at the time when it was framed. The Code needed revising and completing, and this was carried out by degrees by means of numerous important laws. In 1904, after the celebration of the centenary of the Code Civil, an extra-parliamentary commission was nominated to prepare a revision of it, and at once began the work.
The influence of the Code Civil has been very great, not only in France but also abroad. Belgium has preserved it, and the Rhine provinces only ceased to be subject to it on the promulgation of the civil code of the German empire. Its ascendancy has been due chiefly to the clearness of its provisions, and to the spirit of equity and equality which inspires them. Numerous more recent codes have also taken it as a model: the Dutch code, the Italian, and the code of Portugal; and, more remotely, the Spanish code, and those of the Central and South American republics. In the present day it is rivalled by the German civil code, which, having been drawn up at the end of the 19th century, naturally does not show the same lacunae or omissions. It is inspired, however, by a very different spirit, and the French code does not suffer altogether by comparison with it either in substance or in form.
See Le Code Civil, livre du centenaire (Paris, 1904), a collection of essays by French and foreign lawyers.
- (J. P. E.)