Modern French law—the present-day distillation of the “civil law tradition,” a dynamic and still developing branch of the world’s major legal system—has its roots in two thousand years of legal history.2 Rome and its empire collapsed in the 5th century, but Roman law survived in Gaul at various levels and in different forms. Although many parts of France were under centuries of foreign domination, its legal system, particularly in the south, was receptive to the revived Roman law that was being studied and taught in the universities of northern Italy at the dawn of the Renaissance. This new approach to medieval Roman law began to color and provide a unifying force to what had been a fragmented, localized condition of law in all of France. By the 13th century, the southern half of France was controlled by droit écrit, a mélange of Visigothic Roman law combined with more modern treatments of the Corpus juris developed by Italian and southern French scholars and enormously influenced by the rigorous approach of the late medieval canonists. In the north and west (the regions where Frankish and Burgundian monarchs had set the stage for legal development), it was only natural that the droit coutumier, based on Germanic custom and tradition, would prevail.3
During the Middle Ages and early modern period, while Roman law was achieving ascendancy in the rest of Europe, the French kings, and even their vassals, determinedly independent of the Holy Roman Empire, constantly asserted the importance and, in effect, primacy of customary law, especially in the lands north and west of Paris. Considerable difficulties in government and administration attended this fragmented and disunifying approach. France was an emerging nation-state with rulers especially intent upon achieving centralization of authority. Diversity in the laws—and even the legal system—created additional impediments to social and economic relationships in the increasingly mobile French society. A measure of standardization was inevitable. By the 16th century the dominance of the coutumes of Paris (first published in 1510) had been achieved in all areas except Normandy, Burgundy and Brittainy. The Paris coutumes gradually became the standard applied throughout France, even in preference to Roman law. With the general acceptance/imposition of a fixed format for customary law, further development of this normally evolving type of law was halted by the late 1500s.
The great diversity of French law—varied in format and differing from region to region—presented a challenge to the absolutist tendencies of modern French governments which constantly aspired to centralization of power and unity of laws. Canon law was a normal vehicle for the unification process, bringing order and consistency to private civil and commercial law, and by the 16th century, Romano-canonic law had begun to emerge as a potential jus commune for France. The task of developing a sophisticated and workable droit commun, combining both customary laws and written (Roman or canon) law was taken on by a few scholars, particularly the 16th century writer Charles DuMoulin. His works—commentaries on customary laws and a synthesis of Roman law with contemporary practice—totally influenced the movement towards creation of a unified French law. In the next century Jean Domat continued the tradition by producing a monumental work that successfully reordered all existing French law in accordance with principles of natural law.
He was the first to venture beyond the confines of the Romanist tradition, rejecting obsolete doctrines or irrelevant and conflicting rules in rationalizing the mass of customary law. Domat performed the bold and extraordinary feat of recasting the entire mass of existing Roman law and restating it concisely in what he believed to be a rational system … it was the first step in the movement to cut through traditional categories which culminated in the French Revolution and the civil code.4
Domat’s great work appeared in 1689, by which
time, taking his and DuMoulin’s example, the kings of France had already begun
to produce a considerable body of legislation on private (civil and commercial)
law. This process was further affected by the work of the third great scholar,
Robert Joseph Pothier, whose vast oeuvre spanning the mid-18th century
covered both Roman law and modern civil law. By the last decades of the
ancien régime, an actually quite enlightened government had produced
compilations, types of codifications, of all the thousands of lois,
ordonnances and édits that were still in existence and in force in
1789. French law was already substantially unified—due to the work of scholars
whose “doctrine” had set the stage for unification and the government that had
received and modernized the laws and the courts, the parléments that
interpreted and reconciled the regional and local customs with Roman and canon
law and the growing body of national legislation.
France in the revolutionary period (little more than a decade between 1789 and 1803) was the scene of dramatic and violent alteration to the social order. The institutions of the ancien régime were toppled, to be replaced by the often vague and fuzzy concoctions of the late-18th century Enlightenment. A frenzied effort to fill the void left by the obliteration of the old order was the droit intermédiaire.
Intermediate law is that of the revolutionary era, a period whose importance is out of proportion to its length, for the fifteen years seethed with ideas and presaged intense legislative activity…. [T]he revolutionaries elaborated numerous, and often well drafted, laws which though not, of course, a complete substitute for the ancient law, very largely supplanted it in a number of areas (law of persons, property, succession, etc.). This, together with the advent of political centralisation, opened the way for the elaboration of a single legislative system for the whole of France. Efforts were made to achieve this end but they failed several times, and were only successful during the first years of the Empire.5
During the early revolutionary period, the Constituent Assembly, recognizing the need for unifying private law, commenced work on various drafts and proposals for broad codifications. Napoleon, as First Consul, derailed the revolutionary approaches in 1799 when he seized the initiative and appointed a commission of scholars to draft a civil code. In 1801 Napoleon reconstituted the commission and quickly procured a first draft, which, after two years of study and careful legislative revision, was promulgated as the Code civil des Français and came into force in 1804, the last year of the First Republic. Napoleon played a major role in the development of what has evolved as the most controlling document—in a conceptual sense—of the “civil law system.” He participated in many of the meetings of the drafting committee; the clarity and comprehensibility of the language has been attributed to his insistence that the code be understandable and meaningful to a layman and not just to lawyers and scholars. The code is a fairly conservative instrument, oriented to social goals and familial needs, rather than any vehicle for the transmission of blatant revolutionary doctrine. Napoleon’s influence and guidance as an increasingly authoritarian chief of state is apparent. Legislation on the order of the Code civil was bound to be influential, not only within France and its dependent states, but its influence was amplified in that it came along at a particularly felicitous period in western history. It has been termed “intellectually the most significant and historically the most fertile” of the codes that came into force in western and central Europe in the first years of the 19th century.6 The setting is described even more vividly by the great comparativist René David:
For codification to be successful two conditions had to be fulfilled. It had first of all to be the work of an enlightened sovereign, one unhampered by the past and willing—even at the expense of the privileges of an older order—to establish the new principles of justice, freedom and dignity of the individual which, politically, the Natural Law School maintained must be the basis of society. The new compilations also had to be established in a country powerful enough to exercise an inescapable influence over others … that is, in France immediately after the revolution and in association with the new ideals of 1789 and the prestige of Napoleonic expansion.7
The synthesization of civil law was followed
by a sequence of imperial legislation, a code of civil procedure in 1806, a
commercial code in 1807, a code of criminal procedure in 1808 and a criminal
code in 1810. This body of law has survived—intact in form and outline, although
greatly changed in substance—into the last years of the 20th century. The civil
procedure code has been in the process of total reform since the 1970s, and the
draconian criminal procedure code was modified even in the 19th century along
with the penal code, with the former being replaced by a new version in 1957. To
some extent the commercial code is a mere shell, accommodating the new
legislation necessary to control business and trade in the late 20th century.
Withall, the French civil code and its attendant imperial legislation now
provides the historical core for the Romanist branch—the modern “civil law
tradition” of the Romanist-Germanic family of law.
Throughout the 19th century, the development of French law was directed and shaped by an increasing body of “doctrine.” The writings of scholars and teachers provided exegesis and interpretation for what remained a dynamic and responsive legal system, eventually securing a sophisticated and well-formulated system of legislation accessible to all and capable of being reformulated to meet the ever-changing needs of society. The three great French legal scholars of the 16th–18th centuries were succeeded by dozens of influential savants in the 19th–20th centuries, and these now appear to be an ever-renewable source.8
Contemporary French law is now characterized by a fascination with the nuances of administrative law in all its guises, particularly the centralization of government and power. The nation’s legal development has further been greatly affected by its (leading!) participation in the legislative programs of the European Union since the creation of this supra-national body in 1957.