Civil code

Napoleon Bonaparte first established France’s Civil Code, or Napoleonic Code, after the French Revolution (1789–1799). In more modern times, it is the basis for the system of civil law in over one hundred countries. Civil law often coexists with other systems of law, including common law, customary law, and Islamic law. The legal codes that form the basis of civil law specify all procedures for all cases brought before the court and the prescribed punishments for offenses. Civil codes are established by legislation rather than by the judiciary.

Brief History

Civil code is rooted in Roman law. In the sixth century CE, Roman emperor Justinian I commissioned the compilation of Roman law to better administer the sprawling empire. This compilation was lost soon after its creation, but it was rediscovered in the eleventh century and became the basis for legal instruction in Italy. This was adapted over the centuries by legal scholars to fit the needs of the day. In the Middle Ages, the other system of law at this time was canon law, the law of the Roman Catholic Church. These two systems developed into a shared body of legal thought that became common in most of Europe. This body of law held the potential for a comprehensive, codified system of law that laid out substantive and procedural law for all situations.

During the Enlightenment of the eighteenth century, rulers looking to reorganize aligned with jurists to produce comprehensive legal codes. Examples include Austria’s 1786 Code of Joseph II and Complete Civil Code of 1811, Prussia’s Complete Territorial Code of 1794, and France’s Civil Code or Napoleonic Code.

The Napoleonic Code was developed at the direction of French emperor Napoleon Bonaparte after the French Revolution, which ended in 1799 when Napoleon became the ruler of France as First Consul. Later in life, Napoleon considered the code to be his most significant achievement. An expert commission led by Jean-Étienne-Marie Portalis in the second half of 1801 drafted the civil code. At the time, there were four hundred codes in different parts of France, with common law being more prevalent in the north and Roman law being more common in the south. Many of these laws had been overturned by the revolution. The scattered revolutionary governments of France had enacted more than fourteen thousand pieces of legislation. There were five attempts during the periods of the National Convention and the Directory, the two governments set up between 1792 and 1795, to codify these laws.

When Napoleon became First Consul on December 15, 1799, one of his primary goals was to reform the fractured system of the law in France. The draft of the Napoleonic Code was completed at the end of 1801 and published on March 21, 1804. The Napoleonic Code consisted of three books that distinguished three areas of law.

A key feature of France’s Civil Code was the consolidation of some of the basic tenets of the revolution, namely equality before the law, freedom of religion, and the abolition of feudalism. No privilege was given to any individual. Additionally, property rights were made absolute. It took family law out of the hands of the Catholic Church and made it a purely secular matter, instituting provisions for divorce, which had previously been forbidden. The code also confirmed patriarchal power by making the husband the legal ruler of the household and rescinded the rights of children born out of wedlock to bring paternity suits in the interest of securing equal inheritance rights. The code also deprived non-French citizens of civil rights, including the right to inherit or receive gifts.

France’s Civil Code was followed by the Code of Civil Procedure in 1806. A Commercial Code, a Criminal Code, and a Penal Code were passed in 1807, 1808, and 1810, respectively. After the fall of Napoleon and the restoration of the Bourbon monarchy in 1815, the Napoleonic Code was mostly retained but renamed the Civil Code. One controversial change to the Civil Code was the rescinding of the right to divorce.

During the nineteenth century, the Civil Code was promoted throughout the French Empire, which at the time included parts of North America as well as territories in Africa and Asia. Both the state of Louisiana and the Canadian province of Quebec, once subject to the rule of the French Empire, retained the Civil Code after being acquired by the respective countries, which are dominated almost entirely by common law. Many countries around the world maintained the civil law system codified in the Civil Code after achieving their independence from France.

Fifteen American states, originally within territories of European imperial powers, were under civil law systems prior to being acquired by Great Britain or later by the United States. These states are Illinois, Indiana, Michigan, Ohio, Wisconsin, Alabama, Arizona, Arkansas, California, Florida, Louisiana, Mississippi, Missouri, New Mexico, and Texas. After their acquisitions, all of these states except Louisiana adopted a common law system. Many states, however, particularly Southwestern states once part of Spain or Mexico, retain remnants of civil code within their common law systems.

In the nineteenth and twentieth centuries, countries that had their own distinct legal systems, such as Russia and Japan, adopted the system of civil codes in an attempt to compete politically and economically with powerful Western imperial nation-states.

Overview

Civil code is the basis for civil law, a judicial system that is distinct from the other dominant system of the Western world known as common law. The main difference between civil law and common law is that common law is uncodified. This means that there is no complete collection of legal rules and statutes. It is based instead on precedent—in other words, judicial decisions that have previously been made in similar cases. In a civil law system, the civil codes provide the core of the law. Legislators draft these codes, which are interpreted by legal scholars.

Civil code provides for standardization and consistency. It offers codes that are easily accessible to citizens and jurists to establish a comprehensive system of rules and principles. The codes are well organized in a structure based on logical and dynamic taxonomy. Civil codes also contain general clauses that permit adaptation to change and avoid excessive detail. While civil codes do leave room for the judiciary to adjust rules to social change, it is primarily a legislative system.

Civil law systems, codified under civil codes, distinguish between different categories of law, namely substantive law, procedural law, and penal law. Countries that use civil law systems have continuously updated civil codes that specify procedures and appropriate punishments for each case brought before the court.

A main difference between civil law and common law is the role of judges. In a civil law system, the judge has much less authority. The judge is an administrator whose role is to establish the facts of a case and then apply the provisions of the applicable code. Because the law is based on code rather than precedent, the decision of the judge is much less crucial. Another difference in civil law is that it results in longer constitutions. However, these constitutions are easier to amend and amended more frequently, requiring only a single legislative session to do so.

The American legal system is dominated by the common law tradition that was instituted in the North American colonies by England. However, some states—particularly those once under the rule of European imperial powers such as France, Spain, and Portugal—retain remnants of civil code in their common law traditions. For example, California’s common law is organized into sections that echo the traditional Roman civil law. The most prominent example is that of Louisiana, where the state law is based entirely upon civil codes. States that have civil codes in some form include California, Florida, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Nebraska, New Jersey, New Mexico, New York, and Texas.

In continental Europe, most jurisdictions have civil codes. Scandinavian countries, however, are not civil law countries. Civil codes can also be found in countries such as Indonesia, Kyrgyzstan, and Lebanon. The Civil Code of Egypt has significant influence in Africa and the Middle East. In French territories, including New Caledonia and Tahiti, remnants of civil code remain.

Bibliography

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