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The Napoleonic Code - France's Quiet Revolution

For those who have seen Ridley Scott’s recent historical epic, you may already have an appreciation of how monumental a character Napoleon Bonaparte truly was. Starting as a lowly Corsican officer mocked for his accent and social status, Bonaparte rapidly ascended through the ranks to become an earthmoving figure in the world of nineteenth century European politics.


The film, however, tells only half the story. Focusing on Napoleon’s military campaigns and personal life, it leaves out much of his political and legal reforms to the country between 1799 and 1814. As boring as this may appear, Napoleon’s reforms fundamentally transformed the political landscape of France and continue to echo in the country’s legal system today.



A Revolutionary Background


It’s 1789. The Kingdom of France is on the brink of social and economic collapse – poverty is widespread, the country is in financial crisis and the people are starving. It becomes increasingly apparent that feudalism has failed – commoners are taxed severely in order to pick up the pieces of an economy shattered by the clergy and the nobility, only widening the inequality between France’s three social groups (known contemporarily as the Three Estates).


It was against this backdrop that the Revolution was born. Seeking a resolution, King Louis XVI called an unusual for the time Estates General – a convention of the three Estates for discussion. The Estates General, of course, had no formal say in what reforms would be made; France had operated on the basis of an absolute monarchy since the Middle Ages and proposals made by any of the three Estates would be strictly advisory. Adding insult to injury, each of the Estates had only one vote – in a system where the two upper social groups account for less than 2% of the population, and the third makes up the rest (around 27 million people), one can see why the commoners were dissatisfied with these arrangements. The English system at the time, though far from perfect, allowed for much more equal representation and ensured a formal legislative role for Parliament.


Unsurprisingly, the Estates General of 1789 was the last France would see. In June 1789, having reached an impasse, the Third Estate declared itself the National Assembly of France – the commoners unanimously signalled that they intended to conduct the state’s affairs with or without the clergy and nobility, rejecting the traditional division of power which had historically allowed the smaller, more conservative social groups to dominate decision-making by 2-1 votes. The majority had spoken, and the Revolution had begun.


What followed was ten years of unimaginable violence. In that time, France experienced monumental changes to its political structure, moving from an initially constitutional monarchy (though with a more central role for the monarch than in England) to a “real” republic in 1792. The term “real” is a subjective one – what was in theory a democratic republic quickly devolved into a state defined by Maximilien Robespierre’s Reign of Terror. Between 30 and 50,000 died – many were political opponents of Robespierre, including a former party friend, Georges Danton, in 1794. 


To cut a long story short, the highs and lows of the French Revolution culminated in Napoleon Bonaparte overthrowing the 5-member Directory in 1799 and taking power as First Consul. The question remained, however, if Napoleon’s military success would translate into effective governance. Spoiler alert, but yes. Indeed it did.



Napoleon’s Changes


When Napoleon came to power, the laws of France were, in a word… messy. French law consisted mostly of local customs (such as the Custom of Paris) accompanied by a large number of exemptions, privileges and royal decrees granted by the King and feudal lords. Northern France followed this largely common law system, while southern France preferred Roman law. Napoleon set out to do away with this legal confusion and codify France’s basic law into one document, based loosely off Justinian’s codification of Roman law in 529 AD.


The Napoleonic Code (known as the Civil Code of the French between 1804 and 1807) neatly encompassed all aspects of French civil law into one, cohesive document. Napoleon had the added advantage of a free hand in drafting this document – previous attempts at codification in 1793, 1794 and 1796 were met with opposition from the Directory, which by 1800 was no longer a factor.


The Code, officially published in March 1804, was a “typically Napoleonic mix of liberalism and conservatism.” Though preserving the spirit of the Revolution through reforms like the abolition of feudalism, equality before the law and freedom of religion, the Code reversed progress in other areas. The two most controversial examples are the reintroduction of slavery in French colonies (following its abolition by Robespierre in 1794) and the regression of women’s rights in favour of greater patriarchal control. Not exactly in line with the revolutionary maxim of “liberty, fraternity and equality” and not something to be overlooked in a detailed analysis of Napoleon’s legacy.



Reform or Repression?


The civil code was neatly divided into three books, with the first titled “Of Persons.” This dealt with laws applicable to individuals, covering all areas of citizen life including chiefly civil rights, marriage and divorce regulations, and parenthood. Again, even at face value, Napoleon’s rule book could not be described as progressive. Yes, while Chapter I of Title I spells out that “every Frenchman shall enjoy civil rights,” the remainder of the book is not as overtly “revolutionary” in nature. 


Take Title V, for example – this section, concerning marriage, is weighted towards the male partners in marital relationships, making separate provisions for men and women. Chapter I outlines that a child must gain permission from their parents to marry (with the age of discretion for sons being 25, and for daughters 21); in cases of dispute between parents, “the consent of the father is sufficient.” Chapter VI, concerning marital rights and duties, provides that “a wife (owes) obedience to her husband” and is “obliged to live with her husband, and to follow him to every place where he may judge it convenient to reside.” Chapter VIII ensures that “a woman cannot contract a new marriage until ten months have elapsed from the dissolution of the preceding marriage,” despite there being no equivalent rule for men. And that’s not even the worst of it.


Title VI – divorce. You may have noticed already that the Napoleonic Code was not exactly brilliant for gender equality and women’s rights, but it’s here that this is put on full display. Chapter I provides the grounds available for divorce, chief among them being adultery of the other partner – however, whereas a “husband may demand a divorce on the grounds of his wife’s adultery,” a wife can only do so if her husband has “brought his concubine into their common residence” – not to sugar-coat it, this provides an extra safeguard for cheating men against divorce not available to women. Chapter V, dealing with separation, provides for women against whom a petition for separation has been issued (on the grounds of adultery) to be “confined (…) to a house of correction” for up to two years, with the husband retaining the power to “arrest the effect of this sentence, by consenting to receive his wife again.” Again, one can hardly argue that such provisions were fair in the supposedly free and democratic France that revolutionaries like Robespierre had fought for.


The remaining two Books, titled “Of Property” and “Of the Different Modes of Acquiring Property,” were significantly less controversial. Property rights were made absolute and the requirements for validity of contract were laid out, but on the whole these provisions aren’t worth delving too deep into. Suffice to say, they were a significant leap over what had preceded them.


In addition to gender inequality, there was the issue of slavery. Napoleon reintroduced slavery to France’s sugarcane colonies in 1802, and the Code subsequently affirmed this reversal of policy. The reasons for this move were complex, but the matter is simple – slavery, a moral evil by any measure, was once again enshrined in French civil law.


Still, I need to stress that it wasn’t all bad. The Napoleonic Code wasn’t without its merits – in addition to overhauling and modernising the archaic laws of the Ancien Regime, it made significant improvements too. Personal rights and the rights of children were finally enshrined in law, and the Code did away with the last vestiges of the monarchy. For what it’s worth, the Code’s regulations on the individual were ultimately a reflection of European values at the time – though this is no justification, it may convince you to look at it from a contemporary lens rather than a modern one and appreciate it for its importance to the development of France’s constitutional law. 



Concluding Remarks


Though not the first civil code of its kind,  the Napoleonic Code was likely the most monumental. Perhaps the greatest testament to its importance is its continued use today. France continues to utilise the Code (albeit in a heavily modified form) to this day, and it has influenced the systems in other civil law jurisdictions previously subject to French rule (such as Spain, Belgium and Switzerland). 


The best way to describe the Napoleonic Code is a paradox. Where in theory it was a grand and liberal manifestation of revolutionary ideals, in practice it reversed much progress within the realm of individual liberties (especially for women and people of colour throughout the French Empire). A monumental change to constitutional thinking, yet merely a footnote in the extensive history of Napoleon’s achievements. 


Mind you, Napoleon himself saw the Code as his crowning achievement. Not the battles of Borodino or Austerlitz, but this – a revolutionary document which paved the way for modern civil law as we know it. And not even a mention by Ridley Scott. I should’ve directed that movie.


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