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Napoleonic code

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The original Napoleonic Code, or Code Napoléon (originally called the Code civil des francais, or civil code of the French), was the French civil code, established at the behest of Napoléon. It entered into force on March 21, 1804. Even though the Napoleonic code was not the first legal code to be established in a European country with a civil legal system — it was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1792) and the West Galician Code , (Galicia, then part of Austria, 1797) — it is considered the first successful codification and strongly influenced the law of many other countries.

The Napoleonic Code properly said dealt only with civil law issues, such as filiation and property; other codes were later published dealing with criminal law, criminal procedure and commercial law.

The Code, with its stress on clearly written and accessible law, was a major step in establishing the rule of law.



It was based on both earlier French laws and Roman law, and followed Justinian's Corpus Juris Civilis in dividing civil law into:

  1. personal status;
  2. property;
  3. acquisition of property.

The intention behind the Napoleonic Code was to reform the French legal system in accordance with the principles of the French Revolution. Before the Code, France did not have a single set of laws; laws depended on local customs, and often on exemptions, privileges and special charters granted by the kings or other feudal lords. During the Revolution, the vestiges of feudalism were abolished, and the many different legal systems used in different parts of France were to be replaced by a single legal code, whose writing Jean Jacques Régis de Cambacérès had been charged to lead. However, due to the turmoils of war and unrest, the situation did not much advance until Napoleon's era ensured more stability and Cambacérès, then Second Consul under Napoleon, could work in a more serene manner.

Developing out of the various coutumes of France, notably the Coutume de Paris , this recodification process was inspired by Justinian's codified Roman law. The development of the Code was a fundamental change in the nature of the civil law legal system; it made laws much clearer. The redaction of the Civil Code and other subsequent codes resulted in considerable debate within France's legislative bodies.

In ancien régime France, law courts, known as the Parlements, had often taken up a legislative role by protesting royal decisions – to protest excesses of royal power or, in some occasions, in order to defend the privileges of the social classes to which the judges belonged. The latter was especially true in the final years before the Revolution. As a result, the French Revolution took a negative view of judges making law. This is reflected in the Napoleonic Code prohibiting judges from passing judgments exceeding the matter that is to be judged – because general rules are the domain of the law, a legislative, not judicial, power. However, the courts still had to fill the gaps in the laws and regulations; thus a large body of jurisprudence was born; while there is no rule of stare decisis (binding precedent), the decisions by important courts have become more or less equivalent to case law.

Contents of the code

The preliminary article of the Code established certain important provisions regarding to the rule of law. Laws could only be applied if they had been duly promulgated, and if they had been published officially (including provisions for publishing delays, given the means of communication available at the time); thus no secret laws were authorized. It prohibited ex post facto laws (i.e. laws that apply to events that occurred before them). It also prohibited judges from refusing justice on grounds of insufficiency of the law — thereby encouraging them to interpret the law. It, however, prohibited judges from passing general judgments of a legislative value.

With regards to family, the Code estalished the supremacy of the husband with respects to the wife and children; this was the general legal situation in Europe at the time. It, however, allowed divorce on relatively liberal bases compared to other European countries, including divorce by mutual consent.

Subsequent chapters discussed property and contracts.

Other French codes of Napoleon's era

Penal Code

In 1791, Louis-Michel Le Peletier de Saint-Fargeau had presented a new criminal code to the national Constituent Assembly. He explained that it outlawed only "true crimes" and not "phoney offenses, created by superstition, feudalism, the tax system, and [royal] despotism." He did not list the crimes "created by superstition" (meaning the Christian religion), but these certainly included blasphemy, heresy, sacrilege, and witchcraft, and most probably also incest, bestiality, and same-sex sexual acts, none of which was mentioned in the new Penal Code (promulgated September 26-October 6, 1791). All these former offenses were thus decriminalized.

In 1810, a new criminal code was issued under Napoleon. As the preceding one, and probably under Cambacérès' influence, it did not contain provisions against religious crimes or same-sex acts.

Code of Criminal Instruction

In 1808, a "Code of Criminal Instruction" (Code d'instruction criminelle) was published. This code laid out criminal procedure. The parlement system from before the Revolution had been guilty of much abuse; the criminal courts established by the Revolution were a complex and ineffective system, subject to much local pressures. The genesis of this code resulted in much debate. The resulting code is the basis of the modern so-called "inquisitorial system" of criminal courts, used in France and many civil law countries — though, of course, it has significantly changed since Napoléon's days (especially, with improvements of the right of the defense).

The French Revolution's Declaration of the Rights of Man and of the Citizen had declared that suspects were presumed to be innocent until they had been declared to be guilty [by a court of law]. A concern of Bonaparte's was the possibility of arbitrary arrest, or excessive remand (imprisonment prior to a trial). Bonaparte remarked that care should be taken to preserve personal freedoms especially when the case was before the Imperial Court: "these courts would have a great strength, they should be prohibited from abusing this situation against weak citizen without connections." However, remand still was the normal procedure for suspects of severe crimes, such as murder.

The possibility for justice to endorse lengthy remand periods was one reason why the Napoleonic Code was criticized for de facto presumption of guilt, particularly in common law countries. However, the legal proceedings certainly did not have de jure presumption of guilt; for instance, the juror's oath explicitely recommended that the jury did not betray the interests of the defendants, and took attention of the means of defense.

The rules governing court proceedings, by today's standards, probably gave too much power to the prosecution; it must be said, however, that criminal justice in European countries in those days tended to side with repression. For instance, it was only in 1836 that prisoners were charged with a felony were allowed to have counsel (i.e. a lawyer) in England the (Prisoners' Counsel Act).[1] In comparison, article 294 of the Napoleonic Code of Criminal Procedure allowed the defendant to have a lawyer before the Court of Assizes (judging felonies), and mandated the court to appoint him a lawyer if he did not have one (failure to do so rendered the proceedings null).

Whether or not the assize courts, whose task was to judge severe crimes, were to operate with a jury was a topic of considerable controversy; Bonaparte supported judgment juries, and they were finally adopted. On the other hand, Bonaparte was opposed to the indictment jury ("grand jury" in common law countries) and preferred to give this task to the criminal section of the Court of Appeal. Some special courts were created for the judgment of criminals who could intimidate the jury.

Bonaparte also insisted that the courts judging civil and criminal cases should be the same, if only to give them more prestige.

Codes in other countries

Even though the Napoleonic Code was not the first, it was the most influential one. (For a list of early codes, see here). It was adopted in many countries that were occupied by French forces during the Napoleonic Wars and thus formed the basis of the private law systems also of Italy, the Netherlands, Belgium, Spain, Portugal and their former colonies.

Other codes with some influence in their own right were the Swiss, German and Austrian ones, but even there some influence of the French code can be felt, as the Napoleonic Code is considered the first successful codification. Thus, the civil law systems of the countries of modern Europe, with the exception of the United Kingdom, Ireland, Russia, and the Scandinavian countries have, to different degrees, been influenced by the Napoleonic Code. The Code has thus been the most permanent legacy of Napoleon.

The term "Napoleonic code" is also used to refer to legal codes of other jurisdictions that are derived from the French Code Napoleon, especially the civil code of Quebec.

Louisiana's civil code features some aspects of the Napoleonic Code, but is based more on Roman and Spanish civil traditions.

Also see

External link


[1] G.Levasseur, Napoléon et l’élaboration des codes répressifs (Mélanges en homme à Jean Imbert, PUF, 1989 p.371): Legal analysis of the Code of Criminal Procedure

[2] Code Pénal and Code d'Instruction Criminelle ([2] has later versions, with the modifications indicated)

Last updated: 05-12-2005 18:52:00
Last updated: 05-13-2005 07:56:04