French and Austrian Civil Codes: 19th Century Legal Revolution
The Age of the Code (Pages 118 to 126)
From its first steps, the Revolution required the codification of the law. Civil law, until then, had not been disciplined by legislation.
The Rise of Codes
“Code” stands out as a new source of law between the late 18th and early 19th centuries. It dominated throughout the 19th century and much of the 20th century. The code is an idea, a political-legal program. It is the draft radical solution to the problem of the sources of law. Some sovereigns, sensitive to the new verb, adopted it but were unable to do so. The sickle of revolution finally made it possible for Napoleon to run through a capillary coding work.
The ‘Code’ presupposes two revolutions: the cultural revolution of natural law and the Enlightenment, and the factual revolution underlying the six years 1789-1795. It identifies two key developments: a new way of understanding the relationship between political power and law, and therefore a new way to conceive and realize the production of law.
Characteristics of Pre-Code Law Production
Throughout the Middle Ages, and substantially throughout the Old Regime, the production of law had three characteristics:
- It was alluvial, meaning it tended to stratify sources, accumulating them on top of each other, causing confusion and uncertainty.
- It was pluralistic, originating from different sources. Although with the modern legislature, the Prince became an ever more invasive presence.
- It was extra-state, despite increasing legislative interference (the proof was the civil rights customary imprinting).
At the bottom, below all this, was a vivid perception of the history of law, its link with society perennially, rather than the developing sclerotizing state apparatus.
Shift to Legal Absolutism
However, after the natural law review, generated by the Enlightenment, the result could only be one: full statehood of law, with supreme political power as the sole source of law. This constituted a strict legal monism replacing the old pluralism. That is what is called a binding legal absolutism.
The Code is a typical expression of true legal absolutism. This is a totally new way of designing and producing law. Three main tensions shape it: being a single source, a mirror and cement of the compact state, the source must be as complete as possible to ensure the much-desired unity. By being a single source, it also chases the mirage of achieving the same end.
The Code’s Purpose and Structure
However, the Code should not be seen as the end result of a general attitude of legislative mysticism (myth and cult of the Act). It should be framed in the monistic approach that places the law above any other source of law at the top of a very rigid hierarchy. Also, the Code aims to reduce the whole experience into highly articulated and detailed written rules, considering all possible institutions, often starting with providing a definition of them and accurately disciplining all its possible applications.
Natural law arrays also mark the contents of the Code with a radical innovation: in the wake of the general approach that considers the historical and present a pool of slag that stifle genuine naturalness, subjects and relations are abstract. As a result, the Codex becomes a virtual reality populated.
Clarifying accuracy: some legal historians see the code as the last link in a long string instead of the first link in a new chain. They link the code with the many experiments of the recent past, wanting to organize remote and direct the sources of law. They also insist on the presence of not a few traces of institutes involved in the legal life of the Old Regime.
Innovations in Content
In content, innovation is obvious to all: there are no estates, associations, or foundations, but only an individual who is the person who acts in the state of nature, a unitary subject, neither noble nor commoner, peasant nor merchant, poor nor rich. Also new are brand-new instruments at its disposal: property and contract. Property has again found its perfect unitarity, and a contract is expressed only by the voluntary agreement between free traders.
In conclusion, the first encoder was Napoleon, but in 1787, Emperor Joseph II had tried to codify criminal law, limited to a very terrain of public law involving the exercise of sovereignty.
The Prussian Landrecht
This legislative product was born under the leadership of King Frederick II. However, it had suffered over a gestation of more than fifty years, resistance attacks mostly by conservative estates of the realm, and had been given up. It reached a disheartening result: an enormous body of rules that betrayed the Enlightenment ideals of simplicity and clarity. It also placed at its center still belonging to the “estate” (Stand) as a social actor, carrying out another subsequent betrayal of enlightened individualism. But the critical reason that prevents us from seeing the Landrecht as a code is that not only is it not an exclusionary rule, because it leaves in place local rights and deletes only the old common law wisdom, but it even offers regarding them as standard subsidiary.
The French Codification in the Early 19th Century
The 19th century is presented as the age of the codex in its fullness and maturity of expression. In fact, it is a century that begins with two encodings, France and Austria (1804 and 1811), and closes with another, Germany, equally important, which was enacted in 1896 and came into force in 1900. A whole flowering of codes tap your course, all “codes” in the strict legal sense of history, we have assigned to that ambiguous term.
Focus on Civil Law
Although the codification phenomenon involves virtually all fields of law, we should note the experiments relating to civil rights. This is for two reasons: first, for the focus of this volume, relationships between private individuals show mentality as a diffuse reflection of right, certainly more than the rules related to the high palaces of power. Second, because in bourgeois civilization, the civil codex is a model and guide for all legal matters, and that’s where the real constitutional order of society lies. A first demonstration of this: both the French and Austrian Codes open with certain provisions of laws in general (six articles in French, fourteen paragraphs in Austria), indicating that the two legislators have attributed a particular meaning to the new legal systematization.
Another common circumstance: both codices, despite their remote birth, are still in force in the French Republic and the Austrian Federal Republic, obviously renewed in many parts for their adaptation to the times. It is a fact that need not be discussed.
The Code Napoléon
The French Civil Code, enacted in 1804 and known universally as the Code Napoléon, has nothing to do with previous legislative consolidations because it is the legitimate child of legal Enlightenment and the Revolution. It is a new source, a new form of production of law. It is not intended to perfect the legal system of the past, even the recent past, but wants to produce a new standard wedge projected into the future, even into eternity. It is therefore an organic whole that relies on a single project and organic, strict guidelines, closely consistent with a structure logic.
In sum, the law is clear, simple, and abstract, prefigured by reductionism illustrated, in order that emphasize the two notions of subject and unit quite well, converted unit for the sickle of equality that has made tabula rasa the previous social and economic complexity. Now living in the Napoleonic Code, the person and property of the state of nature, freed from any historical superstructure, rediscovered in its alleged primitive originality.
Napoleon’s Role
Napoleon is not the inconsolable widow of the revolution and is not animated by the sincere desire to regenerate the village that had been so obsessed with the Jacobean stage. However, he retains and enhances the revolutionary idea of law as a vital tool for social power control and needed cement. The coding suits his despotic power, and he is committed in the first person to conduct it. Napoleon sensed the enormous importance of disciplining the legislation of private law, and the legislature begins its work starting from civil law. He regularly participated in meetings of the editorial commission and imposed his will not infrequently.
Structure and Content of the Code
It was an extraordinary result: the organic plot in 2281 marked items, all conceivable relations between private individuals were trapped in a thorough discipline made by principles, definitions, forecasts, orders, and penalties. Although the legal drafters knew that achieving completeness was illusory, their commitment and efforts were directed towards the construction of a normative system as complete as possible, and all civil law is hypothesized as compact, locked within the walls of the Code. Cohesion devitalization reinforced by the total of the customs, case law practice, and legal science, eliminated from the list of sources, and reducing the sources of law to the sole intention of the legislature. Article 4 considered it a serious crime for a judge to refuse to judge “under the pretext of the silence, obscurity, or defect of the law”. Although some of those who wrote in the course of the preparatory work thought it might seem like an instrument to enhance the role of the judge, in the final context of the Code, it became a closure, with the judge held prisoner in the cage of a very rigid legality. Legal absolutism triumphed with the civil code, and within the civil code, attained its full intensity.
The structure of substantial contents was also novel, divided into three books: the first devoted to people, the second to property, and the third to the instruments for the circulation of property. The Civil Code has its supporting column in the institution of individual private property. People, the concern of the first book, are considered from the point of view of their projected level of assets, and the institutions to which the third book refers are all means of circulation of goods. Property is no longer the face of power over the thing, in the view of the medieval crawled to the Revolution, but strictly the property unit linked to the freedom of the individual subject and, therefore, one and indivisible shadow the subject of the thing: absolute power, perpetual and exclusive.
It is also significant that contractual discipline is covered. Obviously, individual contracts for specific purposes in daily life and the practice of business are included, but primarily it is the contract, the expression of free consensus. Precisely because it is the expression of individual freedom, it deserves to be protected and results in legal relevance. Ample space is granted to private autonomy within certain boundaries set by the legislature; you can create pictures for their own use.