>> Nicolas Boring: Good
afternoon and welcome
to this new installment of the
Law Library of Congress's series
of webinars focused on
Foreign and Comparative Law.
My name is Nicolas Boring,
and I am the Law Library's
Foreign Law Specialist
for France and other
French speaking countries.
Today we are going to talk
about the French civil code,
often referred to as
the Napoleonic Code.
Napoleon Bonaparte is alleged
to have said in his final exile
at Saint Helena, that
my true gallery is not
to have won forty battles,
Waterloo will erase the
memory of so many victories.
What nothing will
erase but will live
on eternally, is my Civil Code.
And here we seen an allegorical
painting, painted about 12 years
after Napoleon's death, showing
him writing the Civil Code.
Of course Napoleon did not
literally write the code himself
but we will talk
about that in a bit.
There's no denying
the importance
of the Civil Code's legacy, over
200 years after its adoption,
the Code remains a
central legislative text,
not only in France, but in many
countries around the world.
It is true that, this
is true of countries
where it was forcibly
imposed of course,
such as former French
colonies, but also of countries
that were never under
French domination,
such as many Latin American
countries for example.
In this presentation,
I will first talk a bit
about French law prior to the
Civil Code, before talking
about how the Code was
drafted and adopted.
I will then talk about the
Code itself, its structure
and content, its evolution
over time, and finally,
its international legacy.
I also plan to answer questions
you may have at the end
of my presentation
if time permits.
So let's go into it
and let's first talk
about the legal landscape in
France prior to the revolution.
The Kingdom of France,
like most of Europe,
was govern by a hodge-podge
of different laws and customs
and had developed
over the centuries.
This was the result of a couple
of different factors; first,
under the feudal system, every
duchy, county, or principality,
was essentially governed as
an independent territory.
And these territories
gradually came under the rule
of the French monarchy through
various conquests, marriages,
or treaties, they kept
their own rules and laws.
The second factor was
that in the middle ages,
very few people knew
how to read and write,
so justice was mostly dispensed
on the basis of oral traditions.
This map shows the
different customs
that existed prior
to codification.
All of these squiggly lines
delineate different territories,
each of which represents a
distinct set of legal customs.
But this picture is not
entirely complete because even
within each custom, there could
be variations of practices
at an even more local level.
Another interesting aspect
is that you'll notice
that the southern part of France
are shaded in a kind of cream
or salmon color on this map.
As ancient Roman
law was rediscovered
around the 12 century,
jurists in some places,
started applying
Roman law again.
This was practically
true in Southern France
which remained more
Latin culturally compared
to the northern parts
of the Kingdom.
As a result, Southern
France was said
to be the law of written law.
While Northern France was said
to be the land of customary law.
There were some efforts in
the middle ages to record
and compile customs, but these
were mostly private endeavors
and as such, these
compilations could not be used
to prove the existence
or inexistence of
a custom in court.
To remedy this problem,
in around 1453 or 1454,
King Charles VII ordered
that official compilations
of customs be made.
As you can imagine, this
was a very complicated
and long process and most
of these compilations,
called coutume, did not come
into existence until well
into the 16th century.
Here you see a couple
of examples,
both from the 17th century.
On the left is the cover
of the Customs of Paris,
and on the right is the cover
of the Customs of Brittany.
Both of these pictures are from
the French National Library,
but I should mention
that the Library
of Congress also has
some interesting examples
of French Coutume
in its collections.
While the coutume were
certainly an improvement,
the fact remained that French
law was a Byzantine patchwork
that very few people
could really understand.
In researching this
presentation,
I found this terrific
quote from Voltaire.
In his 1764 Dictionnaire
Philosophique,
he wrote an entry
on customary law.
In this entry he writes
that there are, it is said,
one hundred and forty-four
customs in France
that have force of law; these
laws are almost all different.
A man who travels in this
country changes laws almost
as many times as he
changes post horses.
Additionally, jurisprudence
has been so perfected
that there seldom is a custom
that does not have several
commentators, and all,
as you may believe, of
a different opinion.
He goes on to further explain
that even within a custom,
there could be local
differences and practices
and he ends his entry with the
words "May God have pity on us!"
And illustrated by this
quote, the philosophers
of the enlightenment period
were very interested in how
to reform French law and make
it more uniform and rational.
That is when the idea
of codification really
came into the fore.
[inaudible] for example, argued
in favor of a uniform set
of laws as an expression
of the general will.
She thought there
should be three codes;
political, criminal, and civil.
By contrast, it seems that
[inaudible] was skeptical
about the idea of creating
a uniform set of laws.
But that seems to have
been a minority viewpoint
and by the time the French
Revolution started, in 1789,
the idea of having a
uniform set of laws
for the entire nation was
decisively in the air.
Despite that, it took
several years for this idea
to actually come in to practice.
The Revolutionary Constituent
Assembly, which existed
from 1789 to 1791,
called for the drafting
of a unified code
of laws in 1790.
A member of the assembly,
called Merlin de Douai,
who was also a well-known
jurist, wrote in a report that
"we cannot, without danger,
allow to exist any longer
this bizarre marquetry,
this ridiculous assortment of
laws, statutes, and customs."
But these were extremely
unstable times,
to say the least, which was not
ideal for this type of project.
The Constant Assembly
was replaced
by the short-lived National
Legislative Assembly in 1791,
and then by the National
Convention in 1792.
In 1793, the National Convention
asked its legislative commission
to produce a draft of civil
code, but that project ended
up being abandoned after
just a few articles.
Another attempt occurred
the following year, 1794,
in which Merlin de Douai
actively participated.
But project apparently got
bogged down in disagreements
over the fattest
of children born
out of wedlock and
it again failed.
There was yet another attempt in
1795, and two attempts in 1799,
none of which ended
up going anywhere.
According to the legal
historian, [foreign name],
the main problem was that by
the time each draft reached the
legislative assembly, it
was no longer relevant
to the legislators
fast-changing priorities.
So the draft of 1793 was seen
as being too conservative.
By contrast, the draft of
1794, which was presented
around a time of backlash
against the Reign of Terror,
was seen as being
too revolutionary.
A recurring figure in
this story is a man called
Jean-Jacques-Regis
de Cambaceres.
I am not an expert historian
so I won't, want to venture
into historical debates
over who the true father
of the Civil Code really
is, but there is no doubt
that Cambaceres had a central
and pioneering role in history.
Cambaceres was a lawyer from
Southern France who got elected
to the National Convention
in 1792.
He largely avoided taking
controversial stances
or getting too involved
in factional conflict
during the Reign of Terror.
If you will excuse the pun,
he basically kept his head
on by keeping his head down.
However, Cambaceres participated
in this 1799 coup, that thought
that brought Napoleon
Bonaparte to power.
And from then on, his
destiny was tightly linked
to Napoleon's.
They considered him one of
his most trusted advisors.
They had a bit of a falling out
later on but for a long time,
Napoleon trusted him so much
that he would leave Cambaceres
in charge of government
affairs while he was away
on his military campaigns.
In August, 1800,
Napoleon tasked Cambaceres
to supervise a commission
of four eminent jurists,
to again, draft a Civil Code.
These four jurists were;
Francois Denis Tronchet,
Felix Julien Jean Bigot de
Preameneu, Jacques de Maleville,
and Jean-Etienne-MariePortalis.
As we saw earlier, French law
was divided into two types
of systems; customary
law and written law.
Since the drafting
commission was supposed
to create a unified
synthesis of French law,
its four members were partly
chosen to reflect that division,
Bigot de Preameneu and
Tronchet, were respectively
from Brittany and from Paris.
While Maleville was
from [foreign name]
and Portalis was from Provence.
So each member was from a
different region of France
but they also represent
a balance
between the two major
legal traditions of French.
With Bigot de Preameneu
and Tronchet representing the
custom lawyerly law traditions
of Northern France,
and Maleville
and Portalis representing
the written law traditions
of Southern France.
Also worth noting,
all four were known
as having been politically
moderate during the
French Revolution.
This reflects, I think, the
idea that while Napoleon wanted
to modernize French law,
he did not want something
too revolutionary either.
This relates to the
interpretation
of the Napoleonic Code as
being simultaneously modern
and conservative as we
will discuss later on.
Another thing I should note,
to avoid any confusion,
is that Cambaceres was not
actually part of the commission.
The commission was
presided by Tronchet
and Maleville was its secretary.
So strictly speaking, Tronchet,
Maleville, Bigot de Preameneu,
and Portalis are the
Civil Code's authors.
In fact, you will often
see Portalis referred
to as the true father
of the Civil Code.
Of the four commissioners,
he apparently was the more
philosophically oriented
and as such, seems to
have had a large influence
over the big picture direction
of the commission's work.
He also was the one who
presented the draft code
to the legislative assemblies
that eventually adopted it.
To that purpose, he authored
the preliminary address
on the first draft
of the Civil Code
and the general presentation
of the Civil Code System,
which are considered by many
as an unofficial preamble
to the Civil Code.
Additionally, he delivered
the explanatory statements
for several of the bills that
carried the various parts
of the code through the
legislative process.
So all in all, he seems to
have had an enormous impact
over not only the creation
of the code itself,
but how it was received
and interpreted.
However, the Commission's work
also rested, to great extent,
on the foundations
that Cambaceres had laid
several years earlier
in his unsuccessful attempts
to create a Civil Code.
It is worth noting
that [inaudible] himself had
worked alongside Cambaceres
in drafting one of the
unsuccessful Civil Code projects
of the Revolution in 1796.
So he was well-acquainted
with his ideas.
The Commission drafted
its proposed Civil Code
in only 4-5 months,
so relatively quickly.
Copies of their draft were
then sent to all the courts
of appeals of France as well as
to the Tribunal de cassation,
the predecessor of what is now
known the Code de [inaudible].
And at least now kind of the
equivalent of the Supreme Court
for matters of civil
law in France.
These courts were to provide
non-binding advice on the draft
and many of them offered
extensive commentary on it.
Although it is unclear
how much influence any
of these commentaries actually
had on the final product.
Starting in July 1801, the
draft was then discussed
by the Conseil d'Etat,
the Council of State.
This was actually a key
part of the procedure.
A new commission of three
counselors polished the draft
and then it was discussed
extensively
in [inaudible] success,
presided either by Cambaceres
or by Napoleon himself.
Although he did not
have legal training,
Napoleon was very involved
in the discussions.
The draft Civil Code was
discussed over a total
of 107 sessions, 55
of which were presided
by Napoleon himself.
Among the topics that he
seemed to be most interested
in were the secularization of
marriage, the legal end capacity
of married women, divorce,
adoption, and the equality
of children in matters
of inheritance.
The Council of State reviewed
and finalized the draft code,
section by section
and sent each section
to the legislative
assemblies for adoption
on a kind of rolling basis.
The Civil Code was therefore
adopted between 1803 and 1804,
in thirty-six separate laws
and these laws were then
consolidated by law of March 21,
1804, which brought
them all together
in a single unit,
the Civil Code.
While the Civil Code, while the
Council of State had a big role
in finalizing the Civil Code,
the other legislative
bodies were not allowed
to have much say.
Indeed, without getting
into too much detail,
Napoleon imposed a sort of
expedited legislative process
for the adoption of each
section of the code.
Early on, some legislators from
an assembly called the Tribunat,
attempted to push
back and objected
to the first few sections
that were submitted to them,
much to Napoleon's annoyance.
So through various
political maneuvers,
she managed to purge
the assembly
of its most recalcitrant
members thus ensuring
that the Civil Code
would be adopted
by a comfortable majority.
This brings us to an
important, this brings us
to an important point about
the Civil Code's creation
and that is the extent of
which it was the product
of the executive branch.
And not just any executive
branch but a very centralized
and authoritarian one at that.
Napoleon at that point had not
yet crowned himself emperor,
that would come a
few months later,
but he unmistakenly
ran the show.
This may go a long way
to explain the success
of the Civil Code compared
to the previous attempts
at codification.
Previous attempts
occurred entirely
within legislative bodies
of the revolutionary period
and they foundered
because of a combination
of fast-changing
political landscapes
and probably also a phenomenon
of having too many cooks
in the kitchen, so to speak.
By contrast, the regime known
as the consulate, which existed
from November 1799 to May 1804,
was relatively more stable
and there was no doubt
that the first consul,
Napoleon Bonaparte,
was in control.
In any case, there you have
it, the French Civil Code.
It's official name was
originally the Le Code Civil des
Francais, which translates
literally
as the Civil Code of French.
Here you have a picture
of an original copy
from the Library of Congress.
But three years later, its
official title was changed to,
the Napoleon Code,
or Code Napoleon.
It was again changed to simply
the Code Civil or Civil Code,
after Napoleon's defeat in 1815.
In the 1850s and 1860s,
when France was ruled
by Napoleon's nephew who
wanted as much as possible
to capture the prestige
of his uncle's era,
the code was again
renamed the Napoleon Code.
But apart from that,
it's been known
as the Civil Code ever since.
Before moving on to the
structure and content
of the Civil Code, I want to
mention that the other codes
of the Napoleonic
era and beyond.
As you can see here, the Civil
Code was the first of several
that were adopted during
the Napoleonic era.
There were five total.
After the Civil Code came
the Code of Civil Procedure,
the Commercial Code, the Code
of Criminal Procedure,
and the Penal Code.
I should note that the 1810
Penal Code was not France's
first, a Penal Code was adopted
in 1791 and another in 1795
but without getting into any
details, these codes ended
up being very impractical
and had several problems,
hence the adoption of
the Penal code of 1810.
I also want to add that
there was a sixth code,
called the Rural Code that
was finalized in 1814.
This code was supposed to go
over issues related to farming
and the agriculture
sector in general.
But Napoleon advocated that year
and it was never
signed into law.
I included the number
of articles
that each code originally
contained.
Not to over simplify things,
but this gives some indication
of this Civil Code's importance
compared to the others.
As you will see shortly,
the Civil Code addressed
more aspects of everyday life
than any of the other codes.
Codification did not stop with
Napoleon's reign by the way.
There are 74 different
codes in France now,
and that's not counting a number
of codes that were both adopted
and repealed in the course of
the past couple of centuries.
Examples of newer codes that are
currently enforced include the
Code of Public Health, the
Code of Intellectual Property,
the Financial and Monetary Code,
the Administrative Justice Code,
the Environmental
Code, and many others.
A 75th code is in the works,
a code of juvenile criminal
justice which may come
into being later this year.
And for those of you who might
want to research French law,
I will add that all
of these codes along
with all other current French
legislation is accessible online
free of charge at
Legifrance.gouv.fr,
that is the French
government's legal portal
so it's all very
official and up to date.
It's all in French but if
language is not a barrier
for you, then this can
be a valuable resource
for legal research.
So back to the Civil
Code, what's it all about?
Portalis defined the Civil
Code as a body of laws destined
to govern and affix the social,
family, and inter relations
that connect men who
belong to the same city.
The word city here
is used in the sense
of the ancient Greek word,
polis, or the Latin word,
civitas, and refers more to
a sense of national community
or community of citizens.
So according to Portalis
himself,
the Civil Code was meant to
govern most aspects of life
in society; family and social
relations, and property.
of the five original codes
of the Napoleonic era,
the Civil Code was the only
one that was truly unavoidable.
One could plausibly go through
life without having to deal
with the Penal Code,
the Commercial Code,
or either Procedural Codes,
but unless you literally lived
like a hermit away from society,
you were bound to sooner
or later do something that was
governed by the Civil Code.
The Civil Code started out
with a preliminary section
of six articles that establish
certain basic legal principles.
This section was actually much
longer in the original draft
that was presented to
the Council of State.
It originally had
39 articles but most
of these were considered
to be too theoretical
so the section was pared
down to those six articles
which were more practical
and immediately applicable.
So what are those
legal principles?
I won't go through all of them
but a big one is Article 2
which provides that laws
do not apply retroactively.
To take another example,
Article 6 provides
that a person may not
use a private contract
to exempt themselves
from laws that have to do
with public order or morality.
These articles are
still enforced today,
unchanged since 1803, with
the exception of Article 1
which originally provided that
laws applied throughout France
and defined the date on
which new legislation
became applicable.
I won't go into the technical
details except to say
that it was amended in
2004 to make it simpler
and to remove the reference
to laws applying
universally throughout France.
Indeed, a 2003 amendment to
the French Constitution allows,
within limits, for some
legislation to only apply
to some parts of
the French Territory
and not necessarily
the whole country.
So moving on to Book
One of the Code,
which is entitled Of Persons.
This book covers a wide range
of topics, I'm not going
to cover all of them but I will
at least mention most of them
so you can see how wide ranging
this part of the Civil Code is.
The first section has to do with
citizenship, Article 7 provides
that quote, the exercise of
civil rights is independent
from the status of citizen.
And Article 8 declared that
all French citizens shall enjoy
civil rights.
This last one was very much a
legal fiction, women did not
in fact enjoy the same
civil rights as men.
And enslaved persons did not
enjoy any civil rights at all.
The section that addresses
how French citizenship can be
acquired or lost and
includes the principle
of birth right citizenship
by which any person born
in France may claim
French citizenship.
Again, this did not
apply to enslaved persons
and this is a pretty
awful development
because the French
Revolutionaries had actually
abolished slavery in 1794 and
given all persons of color
in the French territories,
full citizenship rights.
But Napoleon undid all of that
and reinstated slavery in 1802.
It wouldn't be until 1848
that slavery would be finally
and definitively
abolished again.
But the new part of
the, but the next part
of Book One covers something
called [foreign name],
which translates as Civil Status
and corresponds more or less
to what we would call vital
records in the United States.
For a long time,
births, marriages,
and deaths were recorded
in Parish registers
but in an effort to
separate church and state,
the revolutionaries
created a system
of civil registers called
[foreign language spoken],
usually kept at the town hall
of every city, town or village
in which these major life
events were recorded.
The recordation of births,
marriages, adoptions, deaths,
et cetera in these
registries is governed
by this section of
the Civil Code.
Book One also governs marriage,
the signing of the procedural
and substantive conditions
for a legally valid marriage
and it governs divorce.
This is interesting, because it
was controversial at the time.
Divorce was not possible
prior to the French Revolution
as matters of marriage
were mostly governed
by the Catholic Church.
But the revolutionaries
legalized divorce in 1792,
including by mutual
consent or for such causes
as temperamental
incompatibility.
Apparently, by around
1799, about one-third
of French married
couples had divorced,
a situation that
often harmed women
as they usually did not
have the financial resources
that men had.
Napoleon's Civil Code
kept divorce legal
but severely restricted it.
Divorce remained possible
in cases of abuse, adultery,
or if the other spouse had
been sentenced to certain types
of criminal punishments.
Divorce for adultery
was definitely unequal.
The woman could divorce
from an adulterous husband,
only if he kept his
mistress in the marital home.
Whereas a man could divorce from
an adulterous wife regardless
of where she saw her lover.
Divorce by mutual
consent remained legal
but the spouses now have
to go through a number
of procedural hoops to
demonstrate the incompatibility.
After Napoleon's
final defeat in 1815,
France became a monarchy again
and Catholicism was restored
as the state religion.
In 1816 divorce was
abolished entirely
and it wouldn't be legalized
again, at least with regards
to divorce for a
cause, until 1884.
Divorce by mutual consent
didn't return until 1975.
With regards to marriage itself,
the Code defined the rights
and duties that existed
between the spouses.
These rights and obligations
were very one-sided
as the Napoleonic Code
was extremely patriarchal.
This is perfectly illustrated
by Article 213, which stated
that the husband owes
protection to the wife,
and the wife owes
obedience to husband.
This provision has
changed a couple times
and gradually becoming
more egalitarian.
Its current wording,
adopted in 1970,
declares that "the spouses
ensure together the moral
and material direction
of the family.
They provide for the
children's education
and prepare their future."
So quite different from the
original Napoleonic Code,
which itself was a
step back compared
to some relatively
egalitarian laws
that had been adopted
during the revolution.
The Civil Code also addressed
questions of filiation,
this means that it defined
the notions of legitimate
and illegitimate children, and
defined the rights of each,
and provided the procedure
to legitimize a child
or conversely to
repudiate a child.
As you might imagine,
children born
out of wedlock had far fewer
rights than legitimate children
in are relationships of
their parents, particularly
with regards to inheritance
rights.
And I would like to make
a quick parenthesis here
because questions about
child legitimacy come
up on fairly regularly on my
job as Foreign Law Specialist,
and an illegitimate child
is simply one who is born
out of wedlock, and he or she
could be legitimated if his
or her parents married
each other.
This is different from a child
who has not been recognized.
So a child can be recognized
or acknowledged by his
or her parents but still
be considered illegitimate.
I mention this because I
have noticed a fair amount
of people get those
notions confused,
which is completely
understandable.
For the record, France
established the Principle
of Equality between legitimate
children and children born
out of wedlock in 1972.
And these very terms
were entirely removed
from the Code in 2006.
But there are parts of the world
where those concepts are still
legally significant today.
The Napoleonic Code
also addressed adoption,
it seems that adoption was very
uncommon during the [inaudible]
but it was legalized during
the French Revolution.
Napoleon however,
restricted it very severely.
For one thing, under
the Napoleonic Code,
only adults could be
formally adopted and only
if the adopting parents
were over 50 years old
and did not already have
children of their own.
Clearly the purpose of adoption
under Napoleon was primarily
to provide an heir to
older, childless couples.
It wouldn't be until
the 1920s that adoption
of children would be
legalized again in France.
Another important section is
the one on parental authority,
which was then called,
tellingly, Paternal Authority.
This is another perfect example
of how extremely patriarchal
the Napoleonic Code was.
While it declared that
children owed honor and respect
to both father and
mother, it also stated
that only the father could
exercise parental authority
and the Code gave fathers
some pretty drastic tools
to impose their will over
their children, most notably,
a father could have his child
arrested and sent to jail,
just by asking the
local court to do so.
Between this and the
provisions on marriage,
we can see that most women of
that period had to go from being
under the authority of
their father to being
under the authority
of their husband.
The only way for a woman
to escape that really was
to become a widow or to never
marry in the first place.
Anyway, as you can tell, Book
One covers a lot of things
and we could spend a lot more
time talking about it but I'd
like to move on to Book Two,
which is about property.
There's not as much
to say about Book Two,
even though it is very important
from a legal perspective.
This portion of the Civil
Code is about property,
which is defined in Article
544 as the right to enjoy
and dispose of things in
the most absolute manner,
so long as one does not use
it in a way that is prohibited
by laws or regulations.
The wording of this
article reveals a lot
about the drafters'
conception of property rights,
which is that while they
could occasionally be limited
by the government,
that was supposed
to be the exception
and not the rule.
The default principle is for
property rights to be as close
to absolute as possible.
This is in keeping with the
ideas prevalent at the time,
which we now call
classical liberalism.
Book Two also divides
property into two types;
immovable and moveable.
Immovable property is what we
would usually call real property
in the U.S. Basically
land and buildings.
Moveable property is
almost everything else.
Much of Book Two is
about defining more precisely
what is moveable or immovable.
For example, Article
520 specifies
that crops are immovable
property while they are still
attached to the soil
by their roots.
Once a crop has been cut, as
what happened during harvest,
it becomes moveable property.
Book Two also addresses
things such as accession,
usufruct, easements, et cetera.
Those are basic concepts
of property law
that would be familiar to
many first year law students.
Book Three is also
about property but more
about how it is acquired or
managed, broadly speaking.
So it has sections on contracts,
sales, rentals, donations,
loans, agency, et cetera.
A section of Book Three defines
and governs corporations.
And it also has a
separate section
on prenuptial agreements
and marital property.
Indeed, a woman could come into
a marriage with her own property
and keep it separate
from her husbands,
even though she would still
need her husband's authority
to manage her property, so
that didn't go very far.
Another very interesting
section I think is the one
on inheritance because
the Napoleonic Code posed
that all heirs of a descendant,
all heirs of a [inaudible]
should be treated equally.
This principle already existed
in some parts of France prior
to the Civil Code but
there were many regions
where a father could
bequeath their entire property
to just one child,
typically the oldest son.
For wealthy families, this meant
that large estates
could be passed
through the generations
intact, even if that was
to the detriment of
some of the children.
Napoleon put an end
to that practice
so that all legitimate children
were now to be treated equally
in matters of inheritance
and for once,
the Code did not
discriminate against women
on this particular topic,
as Article 745 stated
that all legitimate children
would inherit in equal portion,
without distinction of
sex, or order of birth.
Children born out of wedlock
however, were discriminated
against as they could
only claim a fraction
of what legitimate children,
a legitimate child could.
And children born
of an adulterous
or incestuous relationship had
even fewer inheritance rights
which strikes me as
particularly cruel,
but those were different times.
The surviving spouses,
was also left behind
by the Napoleonic Code.
Indeed, a surviving spouse could
only inherit from the decedent
if there were no other
heirs up to the 12th degree.
Thankfully these discriminatory
practices have disappeared
over time, but the principle
of equality among heirs
of the same degree, remains
with some adjustments.
Another important
section has to do
with extra contractual
liability,
which is the equivalent of
what we would call tort law.
Article 1382 of the Napoleonic
Code provided that any action
by a person which causes damage
to another, requires the one
through whose fault it
happened to repair it.
Similarly, Article 1383
provides that each is liable,
not only for damage caused
by his own actions but also
by his negligence or imprudence.
There's a few more articles,
as you would imagine,
but that provides, that
provide that people are liable
for things done by our children,
by animals under their care,
by their servants, et cetera.
Incidentally, some parts of
the Civil Code were reorganized
in 2016 and the section on
extra contractual liability
was renumbered.
So Article 1382 is
now Article 1240,
and Article 1383 is
now Article 1241.
But otherwise, the
wording of each
of these provisions have
remained unchanged since 1804
and they constitute
the foundation
of the French equivalent
of tort law.
I will briefly add that
a fourth book was added,
I think around 2006, that deals
with certain types of securities
such as assurities, collaterals,
mortgages, et cetera.
Some of the contents of
this Book Four used to be
in Book Three, so
not all of it is new.
Finally, there is
also a Book Five,
which contains only
a few articles
that are only applicable
to the overseas Department
of [inaudible], which
is comprised of a couple
of islands in the Indian Ocean.
So something very specific.
So, what can we say about
this little [inaudible]?
Historians and lawyers
alike have analyzed it
in many different ways; Marxist
historians have criticized it
as being both a product of
bourgeois society and a tool
of bourgeois domination.
Others have pointed out that
it represented the confirmation
of several advances brought
about by the French Revolution,
including not least of which,
the permanent end of feudalism.
The historian, Francois
[foreign name], described it
as a compromise between a
spirit of enlightened despotism
and the legacy of
the ideals of 1789.
But whatever one might say
about the Civil Code of 1804,
it was meant to evolve,
inevitably.
In his preliminary
address on the first draft
of the Civil Code, Portalis
reminded the legislators
that laws, quote, must be
adapted to the character,
the habits, the situation,
of the people
for which they are made.
He did not explicitly say that
the quote should be amended
over time, or at least
I don't think he did.
But it seems implied by this
and other similar
passages of his address.
In any case, the Civil Code has
evolved and quite significantly.
About half of its articles
have been amended since 1804.
The vast majority of
these changes occurred
after the 1880s.
Most of these amendments
had to do
with the changing social
values, particularly
with regards to women's rights.
As you can imagine, the
Civil Code was the focus
of a great many feminist
struggles.
This poster from the 1920s
is very illustrative,
it shows a senile Napoleonic
soldier and the caption says,
Napoleon, supplier of
the battle fields is
who French women owe this
code that oppresses them.
Join the feminists to obtain
its revision, it is overdue
by more than a century.
We've already mentioned some
of those changes when we talked
about Book One, but I will
mention a few more examples.
In 1907, married
women were allowed
to freely dispose
of their own salary.
In 1965, women were allowed
to manage their own property
and to exercise a profession,
even without they I
husband's authorization.
In 1970, the concept of Head
of Household was removed
from the Civil Code.
In 1985, the principle
of equality
between spouses was adopted.
And 1987, saw the principle
of equality between parents
in the exercise of
parental authority.
But there were significant
changes in other areas too.
As we mentioned earlier,
children born
out of wedlock obtained equal
rights to legitimate children
in 1972, and the
concept of legitimate
and illegitimate child
were entirely purged
from the Code in 2006.
Adoption of children
became legal again in 2007.
In 1923, and divorce by mutual
consent was legalized again
in 1975.
The section on citizenship was
changed quite a bit as well;
in fact, that section was
removed from the Civil Code
in 1945 when a separate, Code
of Nationality was established.
This nationality code
was repealed in 1993
and when provisions on French
citizenship were again put
into civil code.
Inheritance law was also
mended over time, particularly
to expand the surviving
spouse's rights.
And finally, let's not
forget the introduction
of the civil union in
1999 and the legalization
of same sex marriage in 2013.
Now I'd like to talk a bit
about the Civil Code's
international legacy,
which is very significant.
Indeed, the Civil Code
has been an inspiration
for many countries, both
within and outside of Europe.
The Napoleonic Code
had a strong influence
on the Italian Civil
Code of 1865
and its influence was also
felt in the development
of a German Civil
Code in the 1890s.
The Napoleonic Code was
also quite influential
in Latin America.
I'm first going to talk about
a few examples of places
that adopted the
Civil Code by choice.
And this may be a good
place for me to bring
up the Civil Code of Louisiana.
There is a pretty
common misconception
that Louisiana inherited
the Napoleonic Code bit
that is incorrect.
The Louisiana Purchase
occurred in 1803,
one year before the
Civil Code existed.
So when Louisiana passed under
U.S. control, it was governed
by a mix of Spanish
law and French law.
A first attempt to codify
Louisiana law occurred in 1808
with the Digest of the
Civil Laws Now in Force
in the Territory of Orleans.
But it did not completely
repeal the civil laws
in existence prior
to its enactment.
Another more comprehensive
code was adopted
by the Louisiana legislature
in 1824 which was, and remains,
the Civil Code of the
State of Louisiana.
There is no doubt that it
was strongly influenced
by the Napoleonic Code and
it is organized in a very,
basically the same way, with
Book One, Book Two, Book Three.
But the Louisiana Civil Code
if very much a distinctly
Louisiana creation
and it probably owes at
least as much to Spanish law
as it does to French law.
Here's another interesting
example, the Haitian Civil Code.
Here's a picture of
an 1826 education
from the Library of Congress.
Haiti became independent from
France on January 1, 1804,
after over 10 years of conflict.
So, like Louisiana,
the Napoleonic Code was
never applied there.
But in 1818 the government
created a commission
of nine members to
codify Haitian law.
It took a while to finalize
but the Haitian Civil Code was
finally adopted a few years
later, in 1825.
The drafters of the Haitian
Civil Code did not simply copy
the Napoleonic Code,
as is evident
by how they structured it
which was quite different.
The Haitian Civil
Code is divided
into 36 different sections
called laws, each having to do
with a different theme.
Law number one for example
has to do with publication
and effects of legislation.
Law number two has to do with
civil and political rights.
Law number three has to do
with vital records, et cetera.
But even though the structure
is different, the drafters
of the Haitian Civil
Code borrowed heavily
from the French Civil
Code and even the order
in which the 36 laws are set
is very similar to the order
in which the corresponding
themes appeared
in the French Civil Code.
Substantively, the Haitian
Civil Code has been criticized
for being too close
to the French model
and not sufficiently adapted to
Haitian values and practices.
As a result, it is not
consistently enforced
and actual practices have led
to the evolution of a system
of customary laws if you will,
which though not officially
recognized, is widely followed
by much of the population.
Nonetheless, the Haitian Civil
Code remains officially enforced
today and is a foundational
source of Haitian law.
Finally, I'll bring up a
relatively more recent example
of a country that adopted
a civil code inspired
by the Napoleonic
Code, Ethiopia.
In 1954, Emperor Haile Selassie
created a commission led
by a renowned French law
professor called Rene David,
to codify Ethiopian law on the
Napoleonian model, excuse me.
They developed a civil code
which was adopted in 1960.
Here you have a picture of the
official Gazette of Ethiopia
from the collection of
the Library of Congress,
in which the Ethiopian Civil
Code was officially published.
The endeavor to codify Ethiopian
civil law was clearly inspired
by the Napoleonic
project and the fact
that Rene David was a French
jurist was bound to ensure
that the French Civil Code
would be a strong influence.
But, Rene David was a
professor of comparative law,
which tempered any inclination
to be too focused on French law.
In fact, he and the other
drafters were very careful
to design a code
that was in keeping
with existing Ethiopian
law and institutions.
The Ethiopian Civil Code appears
to still be in effect today,
but only in parts of the
country, Ethiopia switched
from being a unitary state
to a federal system in 1995
and regional states have
started drafting their own laws
in areas covered
by the Civil Code.
So it's long-term status
is increasingly uncertain.
Now let's talk about the places
where the Civil Code
was imposed,
mostly by [inaudible],
starting with Europe.
When the Civil Code was
adopted in 1804, the territories
of Luxembourg, Belgium, and
some parts of Germany west
of the River Rhine, had
already been annexed by France.
As such, the code
immediately applied there.
But even after 1804, the Civil
Code spread throughout much
of Europe following
Napoleon's conquests.
Not every country
conquered or subjugated
by Napoleon received
it, but many did.
And what is interesting
is the extent
to which the Civil Code
survived the empire even outside
of France.
The Kingdom of Holland
kept the Code for 25 years
after Napoleon's fall.
And some parts of Germany
kept it until about 1900.
Here on the left, you can see
a picture from the Library
of Congress of the
Kodex Napoleana,
which was first adopted in
the Grand Duchy of Warsaw
and portions of which remained
in force in Poland until 1946.
Perhaps most remarkable
are Luxembourg and Belgium,
where the Civil Code is
still enforced today.
Even if, as in France, they
have amended their codes
substantially over time.
The picture on the right
side is an 1881 edition
of the Belgium Civil Code, again
from the Library of Congress.
As a side note, I should mention
that Belgium is currently
in the process of establishing
an entirely new civil code
which will gradually
replace the old one.
But still, this shows the
remarkable staying power
that the Civil Code had
in many parts of Europe.
Then of course, we
have the dissemination
of the Civil Code
through colonialism.
Like Great Britain and a few
other European countries,
France significantly
expanded its colonial empire
in the late 19th century,
particularly in Africa.
And the Civil Code went
where the French went.
However, the French government
did not systematically impose
the code on the indigenous
populations of its new colonies.
Instead, their approach was
to allow a legal dualism
where the Civil Code coexisted
with the preexisting customary
laws of a given territory.
European settlers were
governed by the Civil Code.
That was mandatory.
Individuals who were native
to the colonies however,
had a choice.
A person was presumed
to be governed
by the indigenous customary law
by default but they could opt
to be governed by
the Civil Code.
I believe all it took
was for the person to go
to a civil status officer
and solemnly declare that he
or she wanted to be governed
by the French civil law.
What is clear however,
is that the vast majority
of Africans did not
choose that option.
The educated and urban elite
often did, but for most people,
especially those living
out in rural areas far
from the administrative
centers of the empire,
there was no interest.
When the French colonies gained
their independence in the 1960s,
they inherited both the Civil
Code and the dual legal systems
that I just described.
And for many of these
former French colonies,
this situation continued to
exist long after independence.
The urban elite was usually
governed by the Civil Code,
while the majority
of the population,
especially in the rural areas,
continued to be governed
by local customary law.
I have not done a comprehensive
survey but as far as I can tell,
all French speaking African
countries eventually replaced
the Civil Code, either
in part or entirely.
Often a [inaudible] was
adopted to replace Book One
of the Civil Code,
[inaudible] did so very early
on by adopting a Book
of Persons in 1961,
although it has recently
replaced it again
with a new Civil Code in 2019.
To take up two other examples,
Cote d'Ivoire adopted its
own Civil Code in 1964,
while Burkina Faso adopted
a Code of Persons and Family
in 1989, and a central African
Republic adopted its family code
in 1997.
[foreign name] adopted
a family code in 2002,
and replaced it again in
2018 with a new civil code.
As for the legal duality, most
countries try to eliminate it
after independence by imposing
codified law over customary law.
I think a few countries
maybe decided
to officially recognize
customary law, but most seemed
to have gone the
other way and tried
to impose unified written law
over their entire territories
whether it be a civil code
or a family code or other
similar legislation.
In practice however,
governments seem
to have had limited
success in these endeavors.
From what I can tell from
reading various sources
on French speaking African law,
most countries still have
a defacto dual system
where rural areas are still
governed by customary law
in practice, whether that
is officially sanctioned
by the government or not.
This is where I'm going
to end this presentation,
as we can go, we covered a lot.
But this is a vast topic
and we've definitely continued
talking about different aspects
of the Civil Code and its
legacy for much longer.
But I see we have a little under
10 minutes, so I'm going to look
in the, at the questions,
I see there are a lot of,
there seem to be some
questions, so let me read some
and then I will try
to answer them.
Okay, someone asked if,
are any special codes
that address the
French colonies?
There, so yes and no, under,
I don't know where to start.
But I should mention a
code called the Code Noir,
the Black Code, which
was actually adopted
under Louis XIV, and
that was meant to govern
and regulate slavery
and that only applied
in the French colonies because
slavery basically didn't exist
or almost didn't exist
in continental France
but it was very widespread
in the French colonies,
particularly in the Caribbean.
And so that was an
example of a code
that was practically only
applicable to the colonies.
Later on though, when you
look at the 19th century
and early 20th century,
and colonies in Africa,
for the most part the
existing codes applied there
but there could be some
specific legislations
that could have made
some fine adjustments
to specific colonies
or territories.
So someone was asking for the
title of the forthcoming code
of juvenile criminal justice.
I don't remember it
off the top of my head.
I'd be happy to look it up,
I would suggest you
could send me a question
through the Ask a Librarian
feature, the slide that's
up right now has a link for Ask
a Librarian, and I'd be happy
to look it up for you
and send you a link.
So someone asked--
-- let's see.
Oh, I lost my place.
Someone asked about differences
between the French Civil
Code and common law.
That I'm afraid, it's
such a broad question,
I can't really answer it, but
I'd say that the difference
between the Civil Code and the
common law is really more a
question of legal practice
rather than substance,
to I guess, kind of one
of the defining features,
one of the defining features
that was actually instituted
by the Civil Code was in
the preliminary section,
was that a judge could not,
a judgment only could apply
to the matter at hand.
So a judge could not
make a regulation
that would apply broadly.
So that is kind of
a bit of a contrast
with the common law
practice where courts can,
through the use of precedent,
really create law in themselves.
Now, in practice the
difference is not as stark
as some people seem to
imagine because alright, sure,
in principle French courts are
not supposed, they're supposed
to say what the law is and
not make the law, right?
But, once a court,
especially a higher up court,
like the [foreign name], once it
has interpreted a law a certain
way, I mean, lower
courts are going to follow
that interpretation
going forward.
So, the difference
is not as stark
as some people maybe imagine.
But I think that's kind
of the biggest difference
between common law and
civil law is more about kind
of in the practice of law making
which the Civil Code has tried
to take out of the hands
of judges compared
to the common law.
Let's see, I'm going to try to
pick another, another question.
So someone pointed out that the
Louisiana Civil Code was revised
in 1870 to remove articles
referencing slavery.
And the 1870 edition is the
current edition, so thank you
to the person who
brought that up.
So, so what goes
into the decision,
someone asked what
goes into the decision
to make a new code instead
of amending or adding
to the Civil Code or vice versa?
To be honest, I don't
really know.
I think the idea of-- it could
be a few different things,
one thing is I think it's,
if you want to really completely
revamp the Civil Code,
it might just be more
practical to start from scratch
and build a new one rather
than amend it to the point
where it's unrecognizable.
I know that in a lot of
former French colonies,
a lot of the motivation to
creating their own Civil Code
or Family Code or other, was
to really kind of have a set
of laws that was really more
adapted to their own society
and not you know, it was kind
of part of the enterprise
of decolonization if you will.
And well, I apologize, I, oh
someone, this is interesting,
someone here also mentioned
that the Civil Code of 1804,
to some extent is still enforced
in Poland as it had allowed
to establish the ownership of
the floor which is not known
to the current Polish Civil Law.
So I'm not familiar
enough with Polish law
to really understand that, but
I thank the person for pointing
that out, that's interesting.
Oh, and someone else says
that the 1950 revision is the
current, the current version
of the Louisiana Civil Code, so
thank you for pointing that out.
Alright, one last one and
then I have to wrap it up.
How difficult is it
to change a code?
Oh it's, I think that's,
it depends on how big
of a change you will, but
basically it's, you change it
through legislation so
you know, it could be easy
or difficult according to
the political conditions
that underpin the legislative
process of a given country.
Anyways, I wish I could
go on, but it is 3:01
so it is time for me to wrap up.
Thank you so much for your
interest and your patience
and I hope to see you
again soon, bye, bye.