French Code in Europe
- French Code in Europe
- Influence of the French Code de Procédure Civile (1806) in 19th Century Europe
- Jurisdictions where the French code became the law of the land
- French Civil Code of 1804 (still called the Code Napoleon) In the paper “Worldwide Influence of the French Civil Code of 1804, on the Occasion of its Bicentennial Celebration”, its author, Xavier Blanc-Jouvan (Université Paris I) wrote that the “French Civil Code (…) has experienced an extraordinary expansion throughout the world during the XIXth and XXth centuries. But how influential is it today? A certain weakening of its positions is due to a number of factors : legal (the abundance of models now available) and cultural (the regression of the use of French as an international legal language as well as the declining attraction of our universities in the formation of foreign lawyers). Yet, even after the last two centuries have brought so many changes in society, it remains as a model in many countries, because of its qualities in form and in substance. In fact, it is not only a monument of the past. It still has a great capacity of influence. And the present search for a jus commune in Europe can give it a new chance on the international scene.” Resources
Influence of the French Code de Procédure Civile (1806) in 19th Century Europe
The number of European jurisdictions where Napoleon’s Code de procédure civile (1806) left its mark, either directly or indirectly, is vast. According to R.C. van Caenegem, this is partly due to the fact that this code suited the needs of the 19th century and also embodied much of the common European procedural heritage. (2) Even so, the influence of the French code remains remarkable since no one will deny that this code was defective in many ways. In addition, it was far from innovative. After all, the code was largely based on the 1667 Code Louis.(3) That the 1806 code was very similar to the preexisting procedural law is clear; the main drafter of the code, E.-N. Pigeau (1750-1818), was said to have not been obliged to introduce many changes in post-1806 editions of his introductory work on French civil procedure. (4)
One may ask why, in the light of the above, such a mediocre piece of legislation proved to be able to dominate the procedural debate for a large part of the 19th century and even beyond. It seems that this is largely due to the fact that the code was used as a (positive or negative) point of departure when in the 19th century legislation was drafted in various European countries.
In the present text I will especially focus on Geneva, The Netherlands and Belgium. However, before doing so I will give an overview of the various European jurisdictions
- where the 1806 code for a shorter or longer period became the law of the land or
- where it was not introduced but where its model nevertheless influenced subsequent national legislation.
Within the first group, I will distinguish the countries where the 1806 code was repealed shortly after the defeat of the French emperor and the countries where the code remained in force for a longer period of time. Within the second group, the jurisdictions where French influence was direct may be distinguished from jurisdictions where this influence can only be noticed through an intermediate source which in its turn had been influenced by the French code (either directly or indirectly).
Jurisdictions where the French code became the law of the land
The prime example of jurisdictions where the French code was introduced in the wake of the French armies but where it was repealed shortly after the defeat of Napoleon Bonaparte are the various Italian states. There, beginning in 1806, the introduction of the French code had followed the conquests of the French armies. Although according to Van Caenegem the code seems to have enjoyed a certain popularity in Italy, (5) political reasons resulted in it being repealed after 1815 (even before the defeat of the French emperor, it was claimed that the French code was ‘una legislazione quasi totalmente diversa dall’antica’, ‘straniera affatto ai nostri studi ed ai nostri costumi’).(6)
Although for a short while the old Italian laws were restored, the influence of the French code, often in combination with improvements contained in the procedural code of Geneva (see below), is nevertheless very much present in the various new laws on civil procedure that were introduced afterwards. Examples of French elements that can be found in one or more of the Italian codes are the compulsory preliminary conciliation of the parties, the rule that the opponent party should be summoned directly by the claimant through the services of a bailiff (huissier de justice), the role of the Ministère Public in civil litigation, public and oral hearings, the distinction between an ordinary procedure and a summary procedure, and the fact
that judgments should contain the grounds on which they are based. Italian codes that were influenced by the French model are, for example, the Parmesan code of 1820, the Piedmontese Edict of 1822, the 1834 Regolamento giudiziario per gli affari civili introduced in the papal states by pope Gregory XVI, (7) and the Sardinian codes of 1854 and 1859. French influence remained with the introduction of the all Italian Code of Civil Procedure of 1865 (especially in the area of evidence), although since the start of the 20th century this influence seems to have decreased considerably because of the growing influence of German and Austrian procedural scholarship. Apart from this, it should be remembered that in many areas French influence in the 1865 code is indirect, because it incorporated rules from several earlier Italian codes which themselves had been influenced by the French example. The Parmesan code of 1820 was, for example, a source of inspiration. This code can be viewed as an improved version of the French code.(8)
As stated, the various Italian states quickly repealed the French code after the defeat of
Napoleon Bonaparte. They were, however, not the only European territories to do so. Another
jurisdiction that can be mentioned in this respect is Geneva. A new Geneva code was drafted by P.-F. Bellot (1776-1836) and others. This code was adopted on 29 September 1819 and came into effect in 1821. It shows clear ties with its French predecessor but at the same time contains a large number of improvements. (…)
The Netherlands were slower in replacing the French code with a native product, even though work on a Dutch Code of Civil Procedure started early, i.e., in 1814. However, mainly due to problems which arose as a result of the union of the Northern Netherlands (the present-day Kingdom) with the Southern Netherlands (Belgium) from 1815 until 1830, it would last nearly 25 years before the 1838 Dutch Code of Civil Procedure was introduced. (…)
Apart from the European jurisdictions where the 1806 code was relatively quickly replaced by
native legislation, various other European states kept this code for a much longer period of time. In Poland, the code would be in force for more than 65 years. There, it had been introduced in 1808 in the Duchy of Warsaw and would only be abolished in 1875, when it was replaced by Russian laws on civil procedure dating from 1864 (which, however, themselves had been influenced by the French code; see below).(9)
The French code remained in force for roughly the same period of time in the German territories on the left bank of the river Rhine. In 1807 it became the law in Rheinpreussen, Rheinhessen and Rheinbayern, the Kingdom of Westphalia followed in 1809, whereas the Grand Duchy of Berg adopted the code in 1811. In several of these territories this code would only cease to be in force due to the introduction of the 1877 all-German Reichszivilprozessordnung. (10) The French procedural model became very influential in Germany. I will discuss this subject in Section 2.2. First, however, some further attention should be given to Belgium, where the 1806 code remained in force for more than a century and a half.
In Belgium, which had been annexed to France in 1795, the 1806 code was introduced in 1807 just as in the other parts of the territories which at that time belonged to the realm of the French emperor. It was only replaced by a native product in the second half of the 20th century, when the 1967 Code Judiciaire (Gerechtelijk Wetboek) was introduced. In the present paper, this new code will not be discussed. However, I will discuss an unsuccessful 19th-century project (…) aimed at introducing a new Belgian Code of Civil Procedure. This project from the late 1860s is interesting, because it was meant – just as the Geneva code – to improve the 1806 French procedural model.