Comparative Law

Professor Pedro A. Malavet

Class Notes Part Six

(Last Updated: April 5, 2005)

VI. Revolutions and Codes

Modern European private law is the result of a melding of Roman, Canon and Customary or local law into an operating legal system. The final influence in this process is the revolutionary philosophy of the late 18th Century, principally, the French Revolution of 1789.

It is hard to imagine that the Parlement of Paris, which insisted on the convening of the Three Estates, which had not met since 1614, anticipated the events that unfolded in Versailles in the Summer of 1789. They expected that the Clerical and Nobility Estates would outvote the Bourgeois Estate 2-1, since that was the traditional voting method, and the Parlement had expressly rejected single-delegate voting in 1788. But the Bourgeois Estate simply refused to vote in the traditional way and demanded individual member voting, which guaranteed it at least a stalemate with the other two estates, because King Louis XVI had given them as many members as the other two estates combined. Then, a few clerics joined them, on June 13, 1789. On June 17, 1789, the Third Estate, which now counted with a majority of the delegates, declared itself a National Assembly. They were forced into the Tennis Court when the king closed their chamber. 18,000 soldiers were summoned to Versailles. The king allied himself with the nobles, against the tradition of the French monarchy, which had spent the past 200 years fighting the vestiges of feudalism. BIG mistake. On July 14, 1789, responding to the summoning of troops to Versailles, the people storm the Bastille and start arming themselves. The regular army did not move against the insurrection, which quickly spread to all of France. The Marquis de Lafayette was appointed to head a bourgeois National Guard of Paris, and the rest, as they say, is history.

Map from Hyperhistory

18th Century France

The Tennis Court at Versailles, 1789

The Terror

Napoleon in 1797

Napoleon Crowns Himself Emperor

A. Europe (1), 435-449

This session pointed out the main philosophical underpinnings of the French Revolution, and how they affected the legal system that his process produced.

In class, I showed you excerpts from an English translation of the Declaration of the Rights of Man of 1789, which is linked hereto. I noticed immediately that the interpreter had taken some liberties with the translation. I compared it to the French Version of the Declaration, and noted that the English version had been de-sexed in some parts. An interesting example of the perils (or benefits) of translation.

Note the Secular, anti-nobility aspects of the Constitution excerpts below. And note how a new preferred class of people is created: the public functionary. In other words, bureaucrats are acceptable. Note as well the deep distrust of judicial law making and of the judicial power generally that was produced by the hatred of the Parlements. Hence, the notion of Separation of powers a la French, means separate, but NOT co-equal branches of government. Legislative Supremacy is tops in a State Positivistic nation. The Executive implements the law. The judiciary applies the law to the resolution of disputes, within carefully defined limits.

The national assembly irrevocably abolishes the institutions that wounded liberty and equal rights:

[1] there is no longer nobility, not peerage, nor hereditary distinctions, nor feudal regimes, not justices patrimoniales, nor any of the titles denominations, and prerogatives deriving from any order of chivalry, nor any of the corporations or dedications requiring proof of nobility or which suppose distinction of birth, nor any other superiority than that of public fonctionnaires in the performance of their functions;

[2] there is no more sale or inheritance of public office;

[3] there is no longer for any part of the nation or for any individual a privilege or exception to the law common all French;

[4] there are no guilds for professional, trade, or arts corporations;

[5] the law no longer recognizes religious vows nor any other obligation contrary to natural rights or to the Constitution.

B. Europe (2), 449-458

Map from Hyperhistory

Note how the major French Codes were all produced during Napoleon's rule.

In reading the Civil Code articles transcribed below, as they appear in our casebook at page 452, study how some analogous provisions might be found in our Public Law, rather than in a Private Law Civil Code. Compare it to the principles of our Fifth Amendment and to the way stare decisis works in our system.

Article 4

The judge who refuses to decide on the pretext of silence, obscurity, or insufficiency of law may be prosecuted for denial of justice.

Article 5

Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.

Article 7

Roman law, ordonnances, general or local customs, statutes, and regulations, cease to have legal effect in mattes governed by the present Code from the date its provisions take effect.

Article 544

Ownership is the right to enjoy and dispose of things in the most absolute manner, provided use is not made of them that is prohibited by statutes or regulations.

Article 545

No one can be required to give up his property, unless for a public purpose, and with prior compensation.

Article 1123

Any person who is not declared incompetent by statute may enter into contracts.

Article 1134

Legally formed agreements have the force of law for the parties.

C. Latin America, 458-476

In this area I focused on the rather imperfect adoption of laws and legal systems, which, in my view, can be directly traced to a liberation from Spain that failed to include a true cross-section of the societies of the Americas. One white elite that had been born in Spain was substituted by another white elite that had been born in the Americas.

D. Germany and the Science of Law, 476-493

Members of the class raised some very interesting questions in this section. One was whether the process of codification in Germany, which was sold as being "volksgeist," roughly translated as the "spirit of the people," was in fact the imposition of the views of a preferred group. Another question was how these supposed "values of the German people" might have contributed to the rise of national socialism in the 1920s and 1930s. I indicated that I am not familiar enough with the German Code to comment conclusively, but there is some evidence that you were heading in the right direction.

German Legal Science Methodology:

"A rule of law may be worked out either [1] by developing the consequences that it involves, or [2] by developing the wider principles that it presupposes." (They prefer no. 2).

1) Data:
components of the German legal system in their historical context; natural data.

2) Analysis:
Studied for the scientific reconstruction of the German legal system.

3) Conclusion:
Identifying inherent principles of the German Legal Order.

PURPOSE:

It was not intended to abolish prior law and substitute a new legal system; on the contrary, the idea was to codify those principles of German law that would emerge from careful historical study of the German legal system.

Categorical Imperative:

Act only on that maxim which you can at the same time will to become a universal law.

Groundwork to a Metaphysics of Morals,
Immanuel Kant, 1785

[Previous Part] [Comparative Page] [Notes Index] [Next Part]

This is the end!