Sunday March 21, 2021’s Smile of the Day: The Napoleonic Code

On this Day:

In 1804, the Napoleonic Code came into force in France, stressing clearly written and accessible law.

The Napoleonic Code, officially the Civil Code of the French (French: Code civil des Français; simply referred to as Code civil) is the French civil code established under the French Consulate in 1804 and still in force, although frequently amended.

It was drafted by a commission of four eminent jurists and entered into force on 21 March 1804. The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of the few documents that have influenced the whole world.

The Napoleonic Code was not the first legal code to be established in a European country with a civil-law legal system; it was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the Allgemeines Landrecht (Prussia, 1794), and the West Galician Code (Galicia, then part of Austria, 1797). It was, however, the first modern legal code to be adopted with a pan-European scope, and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars. The Napoleonic Code influenced developing countries outside Europe, especially in Latin America and the Middle East, who were attempting to modernize and defeudalize their countries through legal reforms.

Napoleon set out to reform the French legal system in accordance with the ideas of the French Revolution, because the old feudal and royal laws seemed confusing and contradictory. After multiple rejected drafts by other commissions, a fresh start was made after Napoleon came to power in 1799. A commission of four eminent jurists was appointed in 1800, including Louis-Joseph Fauré and chaired by Cambacérès (now Second Consul), and sometimes by the First Consul, Napoleon himself. The Code was complete by 1801, after intensive scrutiny by the Council of State; but was not published until 21 March 1804. It was promulgated as the “Civil Code of the French” (Code civil des Français), but was renamed “the Napoleonic Code” (Code Napoléon) from 1807 to 1815, and once again after the Second French Empire.

The process developed mainly out of various customs, but was inspired by Justinian’s sixth-century codification of Roman law, the Corpus Iuris Civilis and, within that, Justinian’s Code (Codex). The Napoleonic Code, however, differed from Justinian’s in important ways: it incorporated all kinds of earlier rules, not only legislation; it was not a collection of edited extracts, but a comprehensive rewrite; its structure was much more rational; it had no religious content, and it was written in the vernacular.

The development of the Napoleonic Code was a fundamental change in the nature of the civil law system, making laws clearer and more accessible. It also superseded the former conflict between royal legislative power and, particularly in the final years before the Revolution, protests by judges representing views and privileges of the social classes to which they belonged. Such conflict led the Revolutionaries to take a negative view of judges making law.

This is reflected in the Napoleonic Code provision prohibiting judges from deciding a case by way of introducing a general rule (Article 5), since the creation of general rules is an exercise of legislative and not of judicial power. In theory, there is thus no case law in France. However, the courts still had to fill in the gaps in the laws and regulations and, indeed, were prohibited from refusing to do so (Article 4). Moreover, both the code and legislation have required judicial interpretation. Thus a vast body of case law has come into existence. There is no rule of stare decisis [Ed: per Black’s Legal Dictionary: Lat. To stand by decided cases; to uphold precedents; to maintain former adjudications. 1 Kent, Comm. 477.]

The categories of the Napoleonic Code were not drawn from the earlier French laws, but instead from Justinian’s sixth-century codification of Roman law, the Corpus Juris Civilis and within it, the Institutes. The Institutes divide law into the law of:

  • persons
  • things
  • actions.

Similarly, the Napoleonic Code divided law into four sections:

  • persons
  • property
  • acquisition of property
  • civil procedure (moved into a separate code in 1806).

Even though the Napoleonic Code was not the first civil code and did not represent the whole of his empire, it was one of the most influential. It was adopted in many countries occupied by the French during the Napoleonic Wars, and thus formed the basis of the private law systems of Italy, the Netherlands, Belgium, Spain, Portugal (and their former colonies), and Poland (1808–1946). In the German regions on the west bank of the Rhine (Rhenish Palatinate and Prussian Rhine Province), the former Duchy of Berg and the Grand Duchy of Baden, the Napoleonic Code was in use until the introduction of the Bürgerliches Gesetzbuch in 1900 as the first common civil code for the entire German Empire.

A number of factors have been shown by Arvind and Stirton to have had a determinative role in the decision by the German states to receive the Code, including territorial concerns, Napoleonic control and influence, the strength of central state institutions, a feudal economy and society, rule by liberal (enlightened despotic) rulers, nativism (local patriotism) among the governing elites, and popular anti-French sentiment.

A civil code with strong Napoleonic influences was also adopted in 1864 in Romania, and remained in force until 2011. The Code was also adopted in Egypt as part of the system of mixed courts introduced in Egypt after the fall of Khedive Ismail. The Code was translated into Arabic from the French by Youssef Wahba Pasha between 1881 and 1883. Other codes with some influence in their own right were the Swiss, German, and Austrian codes, but even therein 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 continental Europe, with the exception of Russia and the Scandinavian countries have, to different degrees, been influenced by the Napoleonic Code. The legal systems of the United Kingdom other than Scotland, as well as Ireland and the Commonwealth, are derived from English common law rather than from Roman roots. Scots law, though also a civil law system, is uncodified; it was strongly influenced by Roman-Dutch legal thought, and after the Act of Union 1707, by English law.

The term “Napoleonic Code” is also used to refer to legal codes of other jurisdictions that are influenced by the French Code Napoléon, especially the Civil Code of Lower Canada (replaced in 1994 by the Civil Code of Quebec), mainly derived from the Coutume de Paris, which the British continued to use in Canada following the Treaty of Paris in 1763. Most of the laws in Latin American countries are also heavily based on the Napoleonic Code, e.g. the Chilean Civil Code and the Puerto Rican Civil Code.

In the United States, the legal system is largely based on English common law. But the state of Louisiana is unique in having a strong influence from Napoleonic Code and Spanish legal traditions on its civil code. Spanish and French colonial forces quarreled over Louisiana during most of the 1700s, with Spain ultimately ceding the territory to France in 1800, which in turn sold the territory to the United States in 1803. The 10th Amendment to the US Constitution grants states control of laws not specifically given to the Federal government, so Louisiana’s legal system retains many French elements. Examples of the practical legal differences between Louisiana and the other states include the bar exam and legal standards of practice for attorneys in Louisiana being significantly different from other states; Louisiana being the only American state to practice forced heirship of a deceased person’s estate; and some of Louisiana’s laws clashing with the Uniform Commercial Code practiced by the other 49 states (per Wikipedia).

First, a Story:

A new doctor was going on rounds at the asylum.

He stopped to talk to one man and asked him: “What is your name?”

The patient replied: “I, sir, am Napoleon Bonaparte”.

“How do you know you are Napoleon Bonaparte?” asks the Doctor.

The patient answered: “God told me!” 

A voice from the next bed then shouted out: “I did not!”

Second, a Song:

There is perhaps no other piece of music associated with Napoleon Bonaparte as the 1812 Overture by Pyotr Ilyich Tchaikovsky.

Pyotr Ilyich Tchaikovsky, 7 May 1840 – 6 November 1893, was a Russian composer of the Romantic period. He was the first Russian composer whose music would make a lasting impression internationally. He was honored in 1884 by Tsar Alexander III and awarded a lifetime pension.

Although musically precocious, Tchaikovsky was educated for a career as a civil servant. There was scant opportunity for a musical career in Russia at the time and no system of public music education. When an opportunity for such an education arose, he entered the nascent Saint Petersburg Conservatory, from which he graduated in 1865. The formal Western-oriented teaching that he received there set him apart from composers of the contemporary nationalist movement embodied by the Russian composers of The Five with whom his professional relationship was mixed.

Tchaikovsky’s training set him on a path to reconcile what he had learned with the native musical practices to which he had been exposed from childhood. From that reconciliation, he forged a personal but unmistakably Russian style. The principles that governed melody, harmony and other fundamentals of Russian music ran completely counter to those that governed Western European music, which seemed to defeat the potential for using Russian music in large-scale Western composition or for forming a composite style, and it caused personal antipathies that dented Tchaikovsky’s self-confidence. Russian culture exhibited a split personality, with its native and adopted elements having drifted apart increasingly since the time of Peter the Great. That resulted in uncertainty among the intelligentsia about the country’s national identity, an ambiguity mirrored in Tchaikovsky’s career.

Despite his many popular successes, Tchaikovsky’s life was punctuated by personal crises and depression. Contributory factors included his early separation from his mother for boarding school followed by his mother’s early death; the death of his close friend and colleague Nikolai Rubinstein; and the collapse of the one enduring relationship of his adult life, his 13-year association with the wealthy widow Nadezhda von Meck, who was his patron even though they never actually met each other. His homosexuality, which he kept private, has traditionally also been considered a major factor though some musicologists now downplay its importance. Tchaikovsky’s sudden death at the age of 53 is generally ascribed to cholera; there is an ongoing debate as to whether cholera was indeed the cause of his death.

The Year 1812 Solemn Overture, Op. 49, popularly known as the 1812 Overture, is a concert overture in E♭ major written in 1880 by Russian composer Pyotr Ilyich Tchaikovsky to commemorate the successful Russian defense against Napoleon’s invading Grande Armée in 1812.

The overture debuted in Moscow on 20 August 1882 (Julian date: 8 August 1882), conducted by Ippolit Al’tani under a tent near the then-almost-finished Cathedral of Christ the Saviour, which also memorialized the 1812 defense of Russia. Tchaikovsky himself conducted another performance at the dedication of Carnegie Hall in New York City. This was one of the first times a major European composer visited the United States.

The 15-minute overture is best known for its climactic volley of cannon fire, ringing chimes, and a brass fanfare finale. It has also become a common accompaniment to fireworks displays on the United States’ Independence Day. The 1812 Overture went on to become one of Tchaikovsky’s most popular works, along with his ballet scores to The Nutcracker, The Sleeping Beauty, and Swan Lake (per Wikipedia).

The Conductor Carl Davis said of the 1812 Overture:

“Commissioned in 1880 to commemorate Napoleon’s retreat from Moscow, Tchaikovsky ingeniously blends three given elements into a fairly cohesive whole. Opening and reprised in the finale is an ancient Slavonic prayer for the health of the Tsar, then France’s national anthem, the Marseillaise, in a crossfire of counterpoint and lastly the Russian national anthem. It was composed with spectacle in mind and perfect for outdoor performance. Aside from a large symphony orchestra, the 1812 Overture calls for cannon fire, very precisely notated, a full carillon of bells and a military band. I have taken matters a few steps further with the incorporation of a large choir doubling the opening prayer and finale as well as a concert organ and of course the fireworks. This wide range of forces is an accident waiting to happen. Outdoor concerts are hostage to the elements – a strong wind wreaks havoc with a sound system as amplification is a must. In addition, the air may fill with flying objects from rubber chickens to lit fireworks blown by a rush of wind onto the orchestra and public. I recall an occasion when after holes were burnt in the timpani and players had their hair singed, facing my all female percussion section wearing white safety helmets. Change of wind direction can render the entire orchestra invisible, veiled in an acrid fog of yellow gunpowder and fumes from the hamburger and kebab stalls but Tchaikovsky’s score never fails to impress and always provides a stirring climax to a classical pops event” (per https://carldaviscollection.com/albums/carl-conducts-classical-festival-favourites/3/).

Here is a Fireworks display by Flashpoint Fireworks at the Guildford Cathedral, in Surrey, UK on May 12, 2019 set to the finale of Tchaikovsky’s 1812 Overture conducted by Carl Davis.  I hope you enjoy this!

(https://www.youtube.com/watch?v=7EuGEdNnWr4)

Thought for the Day:

“Imagination rules the world.” – Napoleon Bonaparte

In response to the Electric Battery Smile, the story: “Did you hear that the police arrested two kids yesterday?  One was drinking battery acid, the other was eating fireworks. They charged one and let the other one off” seemed to cause a jolt:

Frank Fowlie of Richmond, BC. Canada wrote:

“GROANNNNNN”

Sandy Weams of Campbell River, BC, Canada wrote:

“Yuk yuk  Do you write these yourself David? If so you may want to do stand up LOL”

Have a great day!

© 2021 David J. Bilinsky and Colleen E. Bilinsky

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