Comparative Law Notes 8

LAW 6250
Professor Pedro A. Malavet

Class Notes: Part 8

Chapter 9: The Codification Process

An Introduction: Revolutions and Codes

Modern European private law is the result of a melding of Roman, Canon and Customary or local law into an operating legal system. The final influence in this process is the revolutionary philosophy of the late 18th Century, principally, the French Revolution of 1789.

It is hard to imagine that the Parlement of Paris, which insisted on the convening of the Three Estates, which had not met since 1614, anticipated the events that unfolded in Versailles in the Summer of 1789. They expected that the Clerical and Nobility Estates would outvote the Bourgeois Estate 2-1, since that was the traditional voting method, and the Parlement had expressly rejected single-delegate voting in 1788. But the Bourgeois Estate simply refused to vote in the traditional way and demanded individual member voting, which guaranteed it at least a stalemate with the other two estates, because King Louis XVI had given them as many members as the other two estates combined. Then, a few clerics joined them, on June 13, 1789. On June 17, 1789, the Third Estate, which now counted with a majority of the delegates, declared itself a National Assembly. They were forced into the Tennis Court when the king closed their chamber. 18,000 soldiers were summoned to Versailles. The king allied himself with the nobles, against the tradition of the French monarchy, which had spent the past 200 years fighting the vestiges of feudalism. BIG mistake. On July 14, 1789, responding to the summoning of troops to Versailles, the people storm the Bastille and start arming themselves. The regular army did not move against the insurrection, which quickly spread to all of France. The Marquis de Lafayette was appointed to head a bourgeois National Guard of Paris, and the rest, as they say, is history.

Map from Hyperhistory

18th Century France

The Tennis Court at Versailles, 1789

The Terror

Napoleon in 1797

Napoleon Crowns Himself Emperor

This session pointed out the main philosophical underpinnings of the French Revolution, and how they affected the legal system that his process produced.

In class, I showed you excerpts from an English translation of the Declaration of the Rights of Man of 1789, which is linked hereto. I noticed immediately that the interpreter had taken some liberties with the translation. I compared it to the French Version of the Declaration, and noted that the English version had been de-sexed in some parts. An interesting example of the perils (or benefits) of translation.

Note the Secular, anti-nobility aspects of the Constitution excerpts below. And note how a new preferred class of people is created: the public functionary. In other words, bureaucrats are acceptable. Note as well the deep distrust of judicial law making and of the judicial power generally that was produced by the hatred of the Parlements. Hence, the notion of Separation of powers a la French, means separate, but NOT co-equal branches of government. Legislative Supremacy is tops in a State Positivistic nation. The Executive implements the law. The judiciary applies the law to the resolution of disputes, within carefully defined limits.

The national assembly irrevocably abolishes the institutions that wounded liberty and equal rights:

[1] there is no longer nobility, not peerage, nor hereditary distinctions, nor feudal regimes, not justices patrimoniales, nor any of the titles denominations, and prerogatives deriving from any order of chivalry, nor any of the corporations or dedications requiring proof of nobility or which suppose distinction of birth, nor any other superiority than that of public fonctionnaires in the performance of their functions;

[2] there is no more sale or inheritance of public office;

[3] there is no longer for any part of the nation or for any individual a privilege or exception to the law common all French;

[4] there are no guilds for professional, trade, or arts corporations;

[5] the law no longer recognizes religious vows nor any other obligation contrary to natural rights or to the Constitution.

Map from Hyperhistory

Note how the major French Codes were all produced during Napoleon's rule.

In reading the Civil Code articles transcribed below, study how some analogous provisions might be found in our Public Law, rather than in a Private Law Civil Code. Compare it to the principles of our Fifth Amendment and to the way stare decisis works in our system.

Article 4

The judge who refuses to decide on the pretext of silence, obscurity, or insufficiency of law may be prosecuted for denial of justice.

Article 5

Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.

Article 7

Roman law, ordonnances, general or local customs, statutes, and regulations, cease to have legal effect in mattes governed by the present Code from the date its provisions take effect.

Article 544

Ownership is the right to enjoy and dispose of things in the most absolute manner, provided use is not made of them that is prohibited by statutes or regulations.

Article 545

No one can be required to give up his property, unless for a public purpose, and with prior compensation.

Article 1123

Any person who is not declared incompetent by statute may enter into contracts.

Article 1134

Legally formed agreements have the force of law for the parties.

Sub traditions of the Civil Law
(1) Roman Civil Law
(2) Canon Law
(3) Commercial Law
(4) The Revolution
(5) Legal Science
(6) Modern Constitutionalism

Englightenment & Codes
These movements which, in the field of law, were frequently directed towards reform or codification, or sometimes reform by means of codification, were based on a belief in the liberating influence of reason both in intellectual life and in the organization of society; this belief itself had grown out of Natural Law. Enlightened men were inclined to be critical of received thought, but they claimed to be able to provide a rational and therefore sound treatment of all problems, social and economic, political and legal. In France these attitudes were to culminate in the Revolution and in the Code Civil. (parr. 15.1.1)

The Intellectual Revolution
Secular Natural Law
Separation of Governmental Powers
(Is it separate and co-equal branches?)
The “Age of Reason”

The Secular State
Nationalism/State Positivism
Characteristics of the System
Secular
Centralized Authority
Nationalism

Judicial Department
“It is emphatically the province and duty of the judicial department to say what the law is.”
Marburry vs. Madison, Supreme Court of the U.S. (1803).

Criminal Law and the Englightenment
While the commonest Christian theory of punishment held that it should aim at the correction of the criminal __ and Roman law could be cited to support this __ the weight of the Roman texts centred on deterrence, to preserve the tranquility of the state. This was welcome to the growing number of absolute monarchies. (parr. 15.2.1)

Criminal Law & Procedure
Penalties included fines and confiscation, death, mutilation and flogging, prison and outlawry; (Outlawry was a complex social and economic punishment, which could be imposed for a number of crimes, and which consisted of several components. The root of outlawry was banishment from the country. David Smith, http://www.crimsonmane.org/spikevision/outlawry.shtml)
Torture: in general torture was, as it had been in Roman law, an instrument of criminal procedure for the discovery of crime or a means of obtaining proof, not a penalty. (15.2.2).

Death Penalty
The death penalty was widely imposed for treason, lèse-majesté, sacrilege, heresy, rebellion, homicide, and robbery. It was also, at least for those who repeated their crime, likely to be imposed on smugglers, forgers, false witnesses, those who broke regulations governing the food supply or public hygiene, those who committed sexual crimes (which included adultery) __ even without violence __ attempted suicides, blasphemers and many others. In England in 1776 there were reckoned to be 166 capital offences; generally there was no crime which might not be punished with death if the ruler saw fit. (15.2.2.)

Mutilation/Publicity
A deserter might have his foot amputated, a pickpocket his hand, while a slanderer might have his tongue slit, although the two latter might get away with a flogging.
Because they were designed to be deterrent, such penalties were almost invariably inflicted in public and with minatory ceremony.

Secular Criminal Law & Procedure
Before any punishment was inflicted there must be certainty that a crime had been committed, and committed by the accused. Secret accusations and the use of informers should be forbidden, and so too should the arbitrary exercise of a judge's discretion. In a trial there should be no leading questions or oaths intended to prejudice the accused; above all, torture must not be used, as it exonerated the hardy criminal and condemned the weak and innocent __ indeed, the Roman emperors had wished to restrict its use for the same reasons (D 48.18.1.23). (15.2.5)

Criminal Law and Procedure, cont.
Credible witnesses and sure facts must establish the crime, and punishment must be limited to what was necessary to prevent the criminal further harming his fellow_citizens. All beyond was abuse and injustice; penalties that went beyond the preservation of society's safety were of their nature unjust. (15.2.5)

Codification in General
Influenced by the Institutions (also known as the Institutes) in Justinian’s Corpus Juris Civilis
Natural Law thinking used to develop legal categories
“Rational/Scientific” process

Utilitarianism vs. Common Law
Jeremy Bentham (1748-1832) was the acknowledged founder of Utilitarianism, the philosophy which holds that the purpose of society is to arrange for the greatest happiness of the greatest number of its citizens. (15.3.3)

Utilitarian Postivism vs. Legal Custom
Law, which Bentham saw as the command of the ruler in statute form __ a positivist approach which the rationalist development of Natural Law had already reached __ should be used to reinforce Utilitarian ends. (15.3.4).

“Enlightened Despot”s and Codes
In the first three of these the political factor which made them practicable was the existence of the 'benevolent despot', the absolute ruler who had accepted the new thinking of his (or her) day, at least where it did not touch his power, and who was prepared to put these ideas into practice. The French Revolution appeared to herald a radical upsetting of previously established ideas, but Napoleon's emergence led to the publication of a code … (15.3.7)

The Bavarian Code (15.4)
An early experiment
to a large extent the code simply restated the rules of the usus modernus Pandectarum rather than showing allegiance to any particular theory of Natural Law. [Meaning that it was mostly Roman law]
But also influenced by Natural Law thinking

The Prussian Code (15.5)
Extremely famous for its size, complexity and ultimate utter failure
Pushed by Emperor Fredrick William over a period of decades, starting as early as 1713, but really in 1738 (before he dies in 1740).
His son Frederick William II (The Great) takes over.
Finally Frederick William II in 1794 ordered its publication as the Allgemeines Landrecht für die preussischen Staaten (Universal Territorial Law for the Prussian States) [work began in 1780]
In effect until replaced in 1900 by new BGB

The Prussian Code, coverage
The ALR covered the whole field of law, both private __ civil law in the sense inherited from the Roman sources, and also commercial law __ and public, which included constitutional and criminal law, and also that relating both to the Church and to feudal privileges. A general introduction set out the basic principles and doctrines of the law relating to legal personality; the code was then divided into two parts. (15.5.6).

The Prussian Code, coverage
A general introduction set out the basic principles and doctrines of the law relating to legal personality; the code was then divided into two parts. The first part dealt with law relating to the individual, the second with the individual in his social relationships, from the family through corporate bodies, local communities and the like up to the state itself.

Characteristics of the Prussian Code
15.5.7 One feature of the ALR was the immense detail in which each topic was treated, far too great for a satisfactory code since it left no room for development or adjustment.
15.5.8 Natural law rules permeated the code. The idea was accepted that ownership could be transferred by consent; this led, for example, to the concept of a proprietorial right arising after a contract of purchase by X; even if the object of the purchase was transferred to Y, Y could not acquire a proprietorial right himself if he knew of X's right.

Austrian Civil Code
Influenced by the Prussians and dispersed throughout the Balkans
Published in 1811, was highly positivistic
15.6.4 The content of the ABGB is neither purely Roman nor purely Natural Law but a mixture of their rules. It does not accept the Natural Law rule that consent is sufficient to transfer ownership but requires some external form of conveyance, distinguishing between title, which justifies the acquisition of ownership, and the delivery which is necessary to its acquisition, as did Roman law.

The French Code Civil
A product of the revolution or of Napoleon Bonaparte?
A product of the Ancien Regime or of Egalitarian Democracy (or of something else)?

France in 1789
The State was bankrupt, with 50% of the national budget servicing debt (much of it accumulated helping some crazy people in a new place called “The United States of America”)
Royal attempts to tax the nobility and the church (the ones with actual land and money) were thwarted by the Parlements

Powers of the Parlements,
(1) Emergency powers
(2) Regulatory decrees (arrêts de règlement),
(3) Supervision of guilds, power over wages and working conditions; also universities.
(4) Public censors, book-banning, investigating corruption and peccadilos of the important;
(5) Inquest power.
(6) Enregistrement: Making royal legislation applicable and enforceable

Power of the Parlements,
Note how the parlements controlled all aspects of the legal (and social, and religious) life of the city.
Then they used the power of registration to block important royal decrees
Mapou’s reforms were blocked and did not last long
1788 tax reform also blocked by Parlement of Paris, leading to the convocation of the Three Estates

Declaration of the Rights of Man and of the Citizen, 26 August 1789
[Preamble] The French people, as represented at the National Assembly, consider that the ignorance, disregard or contempt of human rights are the sole causes of the nation’s misfortunes and of the corruption of governments and have resolved to state the natural, inalienable and sacred human rights in a solemn declaration, so that this declaration be a constant reminder to the members of the body politic of their rights and their duties; ***

Declaration of the Rights of Man and of the Citizen, 26 August 1789
[Preamble continued] so that as the actions of the legislative and those of the executive power may be compared at any time with the aim of all political institutions, these actions shall be more respectful of that aim; so that the claims of the citizens, based henceforth on simple and indisputable principles, always be turned towards upholding the Constitution and the common good.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 6 - Legislation expresses the overall will. All citizens, either in person or through their representatives, are entitled to contribute to its formation. Legislation must be the same for all, whether it serves to protect or to punish. As all citizens are equal in the eye of the law, positions of high rank, public office and employment are open to all on an equal basis according to ability and without any distinction other than that based on their merit or skill.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 2 - The aim of all political associations shall be to preserve man’s natural and imprescriptible rights. These are the right to freedom, property, safety and the right to resist oppression.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 4 - Freedom is the power to do anything which does not harm another: therefore, the only limits to the exercise of each person’s natural rights are those which ensure that the other members of the community enjoy those same rights. Legislation only may set these limits.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 3 - The principle of all sovereignty resides in the Nation. No body or individual may exercise any power other than that expressly emanating from the Nation.

French Constitution of 1791 [1]
The national assembly irrevocably abolishes the institutions that wounded liberty and equal rights:

French Constitution of 1791 [2]
[1] there is no longer nobility, not peerage, nor hereditary distinctions, nor feudal regimes, not justices patrimoniales, nor any of the titles denominations, and prerogatives deriving from any order of chivalry, nor any of the corporations or dedications requiring proof of nobility or which suppose distinction of birth, nor any other superiority than that of public fonctionnaires in the performance of their functions;

French Constitution of 1791 [3]
[2] there is no more sale or inheritance of public office;
[3] there is no longer for any part of the nation or for any individual a privilege or exception to the law common all French;
[4] there are no guilds for professional, trade, or arts corporations;
[5] the law no longer recognizes religious vows nor any other obligation contrary to natural rights or to the Constitution.

Ideology of the French Constitution of 1791
Secular and anti-nobility
The new preferred class of people is the public functionaryIn other words, bureaucrats are acceptable, and in fact become a new nobility.
Deep distrust of judicial law-making and of the judicial power generally that was produced by the hatred of the Parlements.

French Separation of Powers
Hence, the notion of separation of powers a la French, means separate, but NOT co-equal branches of government.
Legislative Supremacy is tops in a State Positivistic nation. The Executive implements the law. The judiciary applies the law to the resolution of disputes, within carefully defined limits.

A. Enlightenment and Codification, 385-410

Sub traditions of the Civil Law
(1) Roman Civil Law
(2) Canon Law
(3) Commercial Law
(4) The Revolution
(5) Legal Science
(6) Modern Constitutionalism

Englightenment & Codes
[Enlightenment] movements which, in the field of law, were frequently directed towards reform or codification, or sometimes reform by means of codification, were based on a belief in the liberating influence of reason both in intellectual life and in the organization of society…
Parr. 15.1.1, p. 385

Natural Law
this belief itself had grown out of Natural Law.
Enlightened men were inclined to be critical of received thought, but they claimed to be able to provide a rational and therefore sound treatment of all problems, social and economic, political and legal.
In France these attitudes were to culminate in the Revolution and in the Code Civil. (parr. 15.1.1, p. 385)

Economic Change
From agrarian culture to an industrial one
Adam Smith’s vision of “rational[] free competition” and “free markets” vs.
Government regulation
(parr. 15.1.2., pp. 385-386)

New Legal Philosophies
Natural Law, secular and based on “rational” classical economics vs.
“Sentimental,” today clearly psychological approach (note that in economics today psychological economics is firmly entrenched as a challenge to the traditional Smith view)
Parr. 14.1.4, p. 386

The Intellectual Revolution
Secular Natural Law
Separation of Governmental Powers
(Is it separate and co-equal branches?)
The “Age of Reason”

The Secular State
Nationalism/State Positivism
Characteristics of the System
Secular
Centralized Authority
Nationalism

Judicial Department
“It is emphatically the province and duty of the judicial department to say what the law is.”
Marburry vs. Madison, Supreme Court of the U.S. (1803).

Criminal Law and the Englightenment
While the commonest Christian theory of punishment held that it should aim at the correction of the criminal __ and Roman law could be cited to support this __ the weight of the Roman texts centred on deterrence, to preserve the tranquility of the state. This was welcome to the growing number of absolute monarchies. (parr. 15.2.1, p. 387)

Criminal Law & Procedure
Penalties included fines and confiscation, death, mutilation and flogging, prison and outlawry; (Outlawry was a complex social and economic punishment, which could be imposed for a number of crimes, and which consisted of several components. The root of outlawry was banishment from the country. David Smith, http://www.crimsonmane.org/spikevision/outlawry.shtml)
Torture: in general torture was, as it had been in Roman law, an instrument of criminal procedure for the discovery of crime or a means of obtaining proof, not a penalty. (15.2.2).

Death Penalty
The death penalty was widely imposed for treason, lèse-majesté, sacrilege, heresy, rebellion, homicide, and robbery. It was also, at least for those who repeated their crime, likely to be imposed on smugglers, forgers, false witnesses, those who broke regulations governing the food supply or public hygiene, those who committed sexual crimes (which included adultery) __ even without violence __ attempted suicides, blasphemers and many others. In England in 1776 there were reckoned to be 166 capital offences; generally there was no crime which might not be punished with death if the ruler saw fit. (15.2.2.)

Mutilation/Publicity
A deserter might have his foot amputated, a pickpocket his hand, while a slanderer might have his tongue slit, although the two latter might get away with a flogging.
Because they were designed to be deterrent, such penalties were almost invariably inflicted in public and with minatory ceremony.
But note the critical views of natural law philosophers discussed at 15.2.3 and 4.

Secular Criminal Law & Procedure
Before any punishment was inflicted there must be certainty that a crime had been committed, and committed by the accused.
Secret accusations and the use of informers and arbitrary exercise of a judge's discretion should be forbidden
In a trial there should be no leading questions or oaths intended to prejudice the accused;
torture must not be used, as it exonerated the hardy criminal and condemned the weak and innocent. (15.2.5)

Criminal Law and Procedure, cont.
“Social Contract” ideals
Credible witnesses and sure facts must establish the crime, and punishment must be limited to what was necessary to prevent the criminal further harming his fellow_citizens.
All beyond was abuse and injustice; penalties that went beyond the preservation of society's safety were of their nature unjust. (15.2.5)

Codification in General
Influenced by the Institutions (also known as the Institutes) in Justinian’s Corpus Juris Civilis
Natural Law thinking used to develop legal categories
“Rational/Scientific” process
Revolutionary goals for some, reformist for others

Utilitarianism vs. Common Law
Jeremy Bentham (1748-1832) was the acknowledged founder of Utilitarianism, the philosophy which holds that the purpose of society is to arrange for the greatest happiness of the greatest number of its citizens. (15.3.3)

Utilitarian Postivism vs. Legal Custom
Law, which Bentham saw as the command of the ruler in statute form __ a positivist approach which the rationalist development of Natural Law had already reached __ should be used to reinforce Utilitarian ends. (15.3.4).
Note concerns over “arbitrariness of the judiciary” as a need for codification and the need for universal suffrage

“Enlightened Despot”s and Codes
In the first three of these the political factor which made them practicable was the existence of the 'benevolent despot', the absolute ruler who had accepted the new thinking of his (or her) day, at least where it did not touch his power, and who was prepared to put these ideas into practice. The French Revolution appeared to herald a radical upsetting of previously established ideas, but Napoleon's emergence led to the publication of a code … (15.3.7)

The Bavarian Code (15.4)
An early experiment
to a large extent the code simply restated the rules of the usus modernus Pandectarum rather than showing allegiance to any particular theory of Natural Law. [Meaning that it was mostly Roman law]
But also influenced by Natural Law thinking

The Prussian Code (15.5)
Extremely famous for its size, complexity and ultimate utter failure
Pushed by Emperor Fredrick William over a period of decades, starting as early as 1713, but really in 1738 (before he dies in 1740).
His son Frederick William II (The Great) takes over.
Finally Frederick William II in 1794 ordered its publication as the Allgemeines Landrecht für die preussischen Staaten (Universal Territorial Law for the Prussian States) [work began in 1780]
In effect until replaced in 1900 by new BGB

The Prussian Code, coverage
The ALR covered the whole field of law, both private __ civil law in the sense inherited from the Roman sources, and also commercial law __ and public, which included constitutional and criminal law, and also that relating both to the Church and to feudal privileges. A general introduction set out the basic principles and doctrines of the law relating to legal personality; the code was then divided into two parts. (15.5.6).

The Prussian Code, coverage
A general introduction set out the basic principles and doctrines of the law relating to legal personality; the code was then divided into two parts. The first part dealt with law relating to the individual, the second with the individual in his social relationships, from the family through corporate bodies, local communities and the like up to the state itself.

Characteristics of the Prussian Code
15.5.7 One feature of the ALR was the immense detail in which each topic was treated, far too great for a satisfactory code since it left no room for development or adjustment.
15.5.8 Natural law rules permeated the code. The idea was accepted that ownership could be transferred by consent; this led, for example, to the concept of a proprietorial right arising after a contract of purchase by X; even if the object of the purchase was transferred to Y, Y could not acquire a proprietorial right himself if he knew of X's right.

Austrian Civil Code
Influenced by the Prussians and dispersed throughout the Balkans
Published in 1811, was highly positivistic
15.6.4 The content of the ABGB is neither purely Roman nor purely Natural Law but a mixture of their rules. It does not accept the Natural Law rule that consent is sufficient to transfer ownership but requires some external form of conveyance, distinguishing between title, which justifies the acquisition of ownership, and the delivery which is necessary to its acquisition, as did Roman law.

The French Code Civil, 15.7.1, p. 403
A product of the revolution or of Napoleon Bonaparte?
A product of the Ancien Regime or of Egalitarian Democracy (or of something else)?
Note that Northern France followed the so-called customary law (coutume de Paris is a compilation of such laws); Southern France followed the Romanist tradition of written law

France in 1789
The State was bankrupt, with 50% of the national budget servicing debt (much of it accumulated helping some crazy people in a new place called “The United States of America”)
Royal attempts to tax the nobility and the church (the ones with actual land and money) were thwarted by the Parlements
15.7.4

Powers of the Parlements,
(1) Emergency powers
(2) Regulatory decrees (arrêts de règlement),
(3) Supervision of guilds, power over wages and working conditions; also universities.
(4) Public censors, book-banning, investigating corruption and peccadilloes of the important;
(5) Inquest power.
(6) Enregistrement: Making royal legislation applicable and enforceable

Power of the Parlements,
Note how the parlements controlled all aspects of the legal (and social, and religious) life of the city.
Then they used the power of registration to block important royal decrees
Mapou’s reforms were blocked and did not last long
1788 tax reform also blocked by Parlement of Paris, leading to the convocation of the Three Estates

Declaration of the Rights of Man and of the Citizen, 26 August 1789
[Preamble] The French people, as represented at the National Assembly, consider that the ignorance, disregard or contempt of human rights are the sole causes of the nation’s misfortunes and of the corruption of governments and have resolved to state the natural, inalienable and sacred human rights in a solemn declaration, so that this declaration be a constant reminder to the members of the body politic of their rights and their duties; ***

Declaration of the Rights of Man and of the Citizen, 26 August 1789
[Preamble continued] so that as the actions of the legislative and those of the executive power may be compared at any time with the aim of all political institutions, these actions shall be more respectful of that aim; so that the claims of the citizens, based henceforth on simple and indisputable principles, always be turned towards upholding the Constitution and the common good.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 6 - Legislation expresses the overall will. All citizens, either in person or through their representatives, are entitled to contribute to its formation. Legislation must be the same for all, whether it serves to protect or to punish. As all citizens are equal in the eye of the law, positions of high rank, public office and employment are open to all on an equal basis according to ability and without any distinction other than that based on their merit or skill.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 2 - The aim of all political associations shall be to preserve man’s natural and imprescriptible rights. These are the right to freedom, property, safety and the right to resist oppression.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 4 - Freedom is the power to do anything which does not harm another: therefore, the only limits to the exercise of each person’s natural rights are those which ensure that the other members of the community enjoy those same rights. Legislation only may set these limits.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 3 - The principle of all sovereignty resides in the Nation. No body or individual may exercise any power other than that expressly emanating from the Nation.

French Constitution of 1791 [1]
The national assembly irrevocably abolishes the institutions that wounded liberty and equal rights:

French Constitution of 1791 [2]
[1] there is no longer nobility, not peerage, nor hereditary distinctions, nor feudal regimes, not justices patrimoniales, nor any of the titles denominations, and prerogatives deriving from any order of chivalry, nor any of the corporations or dedications requiring proof of nobility or which suppose distinction of birth, nor any other superiority than that of public fonctionnaires in the performance of their functions;

French Constitution of 1791 [3]
[2] there is no more sale or inheritance of public office;
[3] there is no longer for any part of the nation or for any individual a privilege or exception to the law common all French;
[4] there are no guilds for professional, trade, or arts corporations;
[5] the law no longer recognizes religious vows nor any other obligation contrary to natural rights or to the Constitution.

Ideology of the French Constitution of 1791
Secular and anti-nobility
The new preferred class of people is the public functionaryIn other words, bureaucrats are acceptable, and in fact become a new nobility.
Deep distrust of judicial law-making and of the judicial power generally that was produced by the hatred of the Parlements.

French Separation of Powers
Hence, the notion of separation of powers a la French, means separate, but NOT co-equal branches of government.
Legislative Supremacy is tops in a State Positivistic nation. The Executive implements the law. The judiciary applies the law to the resolution of disputes, within carefully defined limits.

Napoleonic Law-Making
Four assemblies, mostly appointed by Napoleon.
Consuls proposed legislation, Council of state drafted legislation, Tribunat (appointed intellectuals) discussed and could accept or reject it, the Corps Législatif adopted or rejected the law after hearing the Tribunat and the Government
When the first part of the Civil Code was rejected by the Tribunat, he purged it and reintroduced the legislation.

Code Civil
The initial draft was a failure and Napoleon withdrew it, replaced the members of the Tribunat, and then resubmitted it
Napoleon personally presided over 57 of the 102 sessions devoted to the draft (15.7.6).

The Five French Codes, 15.7.7 (& .10) pp. 407-408
Three Books (15.7.8, p. 408)
Of Persons
Of Property (movable and immovable)
Modes of Acquisition

Book I
Book I opens with six articles — the Code is normally cited by article alone, consecutive articles from the start of Book I to the end of Book III on the publication, effects and application of the law; for example, laws are not to have retrospective effect. The main part of the Code then begins, dealing with persons; it includes titles (subdivided into chapters) on civil rights and the formalities of status, on marriage, divorce and paternal power.

Book II,
that is, articles 516_710, deals with property, both moveable and immoveable, with ownership and with lesser real rights.

Book III,
which is more than twice as long as the other two together, deals with modes of acquisition of ownership, starting with succession and proceeding to obligations. Ownership is acquired immediately on perfection of the contract in the case of sale, without need for delivery or payment of the price (article 1483).

Obligations
The law of obligations covers both the generalities applicable to obligations, and specific contracts, quasicontract and delict. Security rights and prescription also occur in Book III, as does the property regime of marriage, since it is viewed as a matter of acquisition of property.

Characteristics, 15.7.9
Simple
In need of much interpretation because of broad provisions
E.g., article 1382:

Statism,
Defined as “the glorification of the Nation State.” It means:
1) All Law comes from the national government
2) National Law found a natural source in customary law (but legislative adoption required).
3) Governmental Centralization
4) Secular Natural Law/ “Rationality” run amok?

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 3 - The principle of all sovereignty resides in the Nation. No body or individual may exercise any power other than that expressly emanating from the Nation.

Civil Code Article 4
The judge who refuses to decide on the pretext of silence, obscurity, or insufficiency of law may be prosecuted for denial of justice.

Civil Code Article 5
Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.

Civil Code Article 7
Roman law, ordonnances, general or local customs, statutes, and regulations, cease to have legal effect in mattes governed by the present Code from the date its provisions take effect.

Civil Code Article 544
Ownership is the right to enjoy and dispose of things in the most absolute manner, provided use is not made of them that is prohibited by statutes or regulations.

Civil Code Article 545
No one can be required to give up his property, unless for a public purpose, and with prior compensation.

Declaration of the Rights of Man
Article 17 - The right of ownership is an inviolable and sacred right; one may not be deprived of one’s property, unless where public need, duly ascertained by law, clearly requires it, and subject to the condition that fair and prior compensation be made.

Civil Code Article 1123
Any person who is not declared incompetent by statute may enter into contracts.

Civil Code Article 1134
Legally formed agreements have the force of law for the parties.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 4 - Freedom is the power to do anything which does not harm another: therefore, the only limits to the exercise of each person’s natural rights are those which ensure that the other members of the community enjoy those same rights. Legislation only may set these limits.

B. Codification in the 19th Century

Code Civil
The initial draft was a failure and Napoleon withdrew it, replaced the members of the Tribunat, and then resubmitted it
Napoleon personally presided over 57 of the 102 sessions devoted to the draft (15.7.6).

Three Books (15.7.8)
Of Persons
Of Property (movable and immovable)
Modes of Acquisition
Characteristics
Simple
In need of much interpretation because of broad provisions
E.g., article 1382:

Statism,
Defined as “the glorification of the Nation State.” It means:
1) All Law comes from the national government
2) National Law found a natural source in customary law (but legislative adoption required).
3) Governmental Centralization
4) Secular Natural Law/ “Rationality” run amok?

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 3 - The principle of all sovereignty resides in the Nation. No body or individual may exercise any power other than that expressly emanating from the Nation.

Civil Code Article 4
The judge who refuses to decide on the pretext of silence, obscurity, or insufficiency of law may be prosecuted for denial of justice.

Civil Code Article 5
Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.

Civil Code Article 7
Roman law, ordonnances, general or local customs, statutes, and regulations, cease to have legal effect in mattes governed by the present Code from the date its provisions take effect.

Civil Code Article 544
Ownership is the right to enjoy and dispose of things in the most absolute manner, provided use is not made of them that is prohibited by statutes or regulations.

Civil Code Article 545
No one can be required to give up his property, unless for a public purpose, and with prior compensation.

Declaration of the Rights of Man
Article 17 - The right of ownership is an inviolable and sacred right; one may not be deprived of one’s property, unless where public need, duly ascertained by law, clearly requires it, and subject to the condition that fair and prior compensation be made.

Civil Code Article 1123
Any person who is not declared incompetent by statute may enter into contracts.

Civil Code Article 1134
Legally formed agreements have the force of law for the parties.

Declaration of the Rights of Man and of the Citizen, 26 August 1789
Article 4 - Freedom is the power to do anything which does not harm another: therefore, the only limits to the exercise of each person’s natural rights are those which ensure that the other members of the community enjoy those same rights. Legislation only may set these limits.

Other Codes: Italy and Germany
Codification was both a consequence of and a factor in the unification of Germany and of Italy in the nineteenth century. Italy's codes owed much to the French codification (16.1.1).

French Influence in Italy
Napoleonic troops bring French law with them.
The defeat of Napoleon saw a return to the earlier political fragmentation of Italy, but many rulers wished to maintain the legal benefits of the French occupation. Moreover, the Code Civil had introduced irreversibly the concept of the equal rights of man before the law. (16.1.2)

Reactionary Influences in Italy
The criminal laws often resisted the influence of the French revolutionary codes both in Italy and in Austria.
Some civil laws, particularly those related to marriage, retained religiously-influenced rules
Ecclesiastical crimes were often retained.

Victor Emmanuel
Sardinia --which included Genoa and Piedmont and came to centre on the latter-- that was most significant for the future of Italian law since unification (save for Rome itself) was finally achieved in 1861 under the leadership of Victor Emmanuel II of Piedmont.

Codification in Germany: The Historical School
The general principles of the Historical School were not new; indeed, they bear marked similarities to many of the notions put forward by the Humanists. Essentially, its followers maintained that law evolved and was continually modified by conditions of time and place.
This represents a rejection of the highly abstract and theoretical type of Natural Law adopted in Germany.
It was also a response to the paternalistic, even fascist acceptance of despots.

Codification in Germany: The Historical School
Historical School … interested in legal history in order that contemporary law could be firmly rooted in its historical past. (16.2.1)
They were also interested in the social context of the laws as they were applied and in the role of jurists in their development (16.2.3)

Von Savigny
Friedrich Carl von Savigny, the most influential individual in this process.
Savigny was instrumental in the founding of the university of Berlin, where he held a chair from 1810 to 1842; he came of a landed family and was for many years a member of the Prussian Staatsrat (the legislative body) and for some seven years Prussian minister for legislation. (16.2.4.)
He opposed codification until Germany had developed as a mature, unified state
He also favored something more analogous to a roman common law as contemporary law

Thibaut
Anton FJ Thibaut, a professor at Heidelberg, published a pamphlet calling for a general civil code for all Germany to replace the existing divisive chaos of contradictory provisions, which was impossible even for lawyers to know thoroughly. The Roman law of the Corpus Iuris he held to be inadequate for the modern world; further, it was obscure and ill_arranged. What was needed was a simple code in German, which would make the law accessible to all; this would be a symbol of unity and the first step towards unification. (16.2.5)

The Pandectists
16.3.1 The Pandectists originated as an off-shoot of the Historical School, and their main concern was the scientific application of the Roman texts. Like the Historical School, their methods prompted discussion and imitation throughout Europe --including England-- and also in America. The Pandectists took their name from the Pandects (ie the Digest) of Justinian and their scholarship was essentially concerned with the systematization of Roman law for contemporary use, with the emphasis on the jurists of the classical age.

The Role of the Jurists
Puchta [student of Savigny] believed that the jurist, as representative of the people, was responsible for both the theory and the practice of the law and must use his skills to express rules and concepts hidden from the untrained mind. This special position meant that the rules elucidated by the jurist should ipso facto have the force of law __ legal science therefore joined custom and legislation as a source of law.

Pandectist Legal Science, 16.3.7
Class: Pandectists claimed to be politically neutral and concerned only with private law, their values were those of the dominant prosperous middle class which believed in the theory of laissez_faire; they stressed freedom of contract and the protection of private property --as indeed the Romans had.
Nationalism: Finally, Pandectist legal science was attractive because it represented unity and not diversity; it offered a common juristic culture which took no account of regional variations, and it was therefore of appeal to the forces of nationalism.

Jhering on Legal Science
He laid the foundations of what was to become known as the jurisprudence of interests: that is, the approach which argues that the duty of a judge, especially when faced with a doubtful decision on a matter for which there is no explicit legislative provision, is to settle the case according to that estimate of the correct balance between the competing interests of the parties concerned which was to be found in the work of the legislator. The judge is not free to follow his discretion but must always look within the written law for this balance; nevertheless, he should concern himself with the legislator's social aims rather than with the ordering of concepts.

The BGB
Mostly Pandectist legal science in content (highly Roman)
Produced when the German Empire becomes more established and centralized
The revised draft was finished in 1895 and was approved by the imperial council with relatively few amendments; it was given statutory force in 1896 with effect from 1 January 1900.

BGB
Combines Roman and German tradition (customary/local laws)
Highly technical in content and language
Has had strong influence in Europe, the Americas and in Asia (here along with the Dutch code)

The French Reaction to Codification

The French Reaction: Limited Judicial Function (16.5.2)
French term jurisprudence --as opposed to the doctrine of the academic lawyers. Nevertheless, even the Cour de Cassation, the supreme court administering the Code Civil (in contrast to the Conseil d'État which is the supreme tribunal in matters of public law), has been carefully restricted so that it should not to appear to make law.

Appeals to Cassation Court
Decisions appealed to it may be quashed (cassé) but they are then sent to a second lower court, equivalent to the first, for a fresh trial. Not until 1837, and then only when all the chambers of the court sat together, was the Cour de Cassation able to give a final decision, and the effect of this is still, supposedly, restricted to the case before the court.

De Facto Jurisprudence
However, although the theory of the subordination of the judiciary means that there can be no doctrine of precedent, there has been a natural tendency in the courts towards consistency, aided by the reports of decided cases.

Legal Writing in France
To avoid any appearance of discretionary interpretation such judgments are laconic. The case report may give the arguments of the advocates in some detail but the stated reasoning of the judges remains terse. However, such reports __ the most notable surviving series are those of Dalloz and Sirey __ have traditionally been accompanied by analytical notes and comments which can reveal the influence of sources older than the Code or of previous decisions of the court. (16.5.3).

Legislative Reference
When statutes required interpretation, the judge should refer the question to the legislature.
Art. 12 of early French republic’s judiciary act: judges “shall have recourse to the legislative body whenever it appears desirable to interpret the law.”

Swiss Code
More modern that the other two, and in some ways more realistic about the judicial function
Art. 1 Swiss Civ. Code
The law regulates all matters to which the letter or the spirit of any of its provisions apply.
In the absence of an applicable legal provision, the judge pronounces in accordance with customary law and, in the absence of a custom, according to the rules that he would establish if he had to act as legislator.
He is guided by the solutions consecrated by juristic opinion and case law.

Spanish Code
Influenced by French codification, but not as much as the French or the LSU people would have us believe
Draft produced in 1851, which probably influenced the Chilean code of 1856-57
Incorporates many of the old Spanish laws, especially the Partidas