French Codification Flashcards
Show as the first king of France
Clovis (466-511), king of the franks -> his intention was to get help of the bishops and the pope
White kinds of roman law were enforced in the south of France
- leges (imperial constitutions, namely Codices Gregorianus, Hermogenianus and
Theodosianus) - ius (writings of Roman lawyers)
How was pre Justinian law enacted and distributed in France
by the (Breviarium Alaricianum) -> had all teh characteristics of a codification
Why was Alaric’s codification still applicable even after the death of king
Because Breviarium Alaricianum was based Ont he principle of personality, thus it remained applicable to roman citizens under Clovis and his successors
Who conquered all of Europe in the year 800
Charlemagne
Was imperium subdivided between the two emperors, Charlemagne (west) and Irene (east)
No, because Charlemagne argued that the imperium should be placed only in charlemages hands
What was the treaty of versus (843 AD)
In 843 ADThe Treaty ended the Carolingian Civil War by partitioning Charlemagne’s empire into Western, Middle, and Eastern sections - Lothair I received Middle Francia, Louis the German received East Francia, and Charles the Bald received West Francia. However after lothar died the middle empire was divided into three parts between his sons until it seized to exist
-> The title of Emperor went to the king in the east which became the Holy Roman Empire. When the middle empire seized to exist, there was continuous strife between France and Germany which became neighbouring countries.
What kind of laws were use in south of France vs north of France
- Northern France → droit coutumier (customary law)
- Southern France → droit ecrite (written law) – Roman law
Why did french kings favour customary law over roman law?
- Law of the eastern empire – Roman law was identified as imperial law
- The notion of nationalism (did not originate in the soil of France)
What was the result of french kings disliking roman law
in 1219 Roman law was prohibited to be taught at the University of Sorbonne through the Super Specula (papal decree by Pope Honorius III). However, in legal practice Roman law was used as it was seen as customary law. In cases in which rules were not to be found in customary law; Roman law was used as common law (→ it could be said then that everything was customary law)
Was was the ordinance of montilz les tours by Charles II in 1452
Because French kings favoured customary law they made an ordinance to put customary law in writing. The records of customs were to be sent to the king for homologation(put them into working and give a royal stamp).
But over time, people in different regions found it more practical to write down their own customs instead of sending them to the king. This led to many different written customary laws. The problem was that if things changed, these written rules might not work anymore, and new unwritten rules would take over.
So, even though they wrote down the customary laws, they needed to keep updating them. For example, the Coutume de Paris, a set of laws first written in 1510, was changed and improved in 1580 to fit with the new situations and needs.
What happened during he enlightenment era in France
18th century philosophers called for the unification/codification of the law
-Voltaire was strongly against legal fragmentation and in favour of codification.
VS
- Montesquieu believed that legal inequality reflected the diversity of the French
What was the coutume de Paris
It was the custom of the court, therefore if there were no local laws applicable to judges, they should turn to the custom of Paris and not roman law. However roman law ended up being looked up to more than the custom of Paris
What changed in the legal relationship between the emperors and the king
Before, people used to believe that ultimate power belonged to the universal empire which was ruled by the emperor but then t changed and people started to regard the supreme authority as belonging to the various kingdom rather than the empire. People then linked this to the relationship between the French King and the Emperor, suggesting that the French King considered himself like an Emperor within his own kingdom. This was trigged by the interpretation of the decree called Per Venerabilem, issued by Pope Innocent III.
What was the decree Per Venerabilem issued by Pope Innocent III
In this decree, the pope said he could make illegitimate children legitimate so they could inherit property.
-> A guy named William Count of Montpellier asked the pope to do this for his illegitimate children, but the pope said he couldn’t. Interestingly, the pope said that William could go to a higher authority—the King of France—for help. Unlike the King of France, who didn’t have a higher authority for worldly matters, William had someone above him, the King of France.
Translate Rex francorum
King of the francs
Translate Rex langobardum
King of the lombards
Translate Imperator romanorum
Emperor of the romans
What was meany by the king was princeps of his own country
-crime of lease majesty is not applicable to emperor but also king
-what pleases the ruler has the force of law -> ordinances have binding powers
-the ruler is not bound by laws, the ruler is above the law -> justification of absolute power
When was the reform of custom of Paris
1580
What was mos gallicus ( Jacques Cujas)
-french way of interpretation
-The practitioners of the mos gallicus didn’t look for the meaning a legal text might have for the current time, but the meaning it had in the past.
-study of Greek language
-one of the greatest scholars of teh french school was jacques cujas
What was the reaction of Italians to mos gullicus
The humanists did not appreciate the needs to their time
Why hindered the french kings’ pursuit of absolute power
The independent actions of the courts of law (Curia Regis)
Why were jurists in parliament prohibited to rely on roman law when customary law was bailable
Because there were jurists who were educated in canon law and roman law, who took office
What were the powers of the local parliaments, especially the eldest (parliament of Paris):
-highest courts in their districts, no legal uniformity
-Right to issuing regulatory decrees in the lame of the king -> arrets de reglement
-every parliament was sovereign:
* droit d’enregistrment → right to refuse to register an ordinance of the king
*droit de remontrance → right to withdraw ordinances
Why was there a power struggle between the king and the parliament
Parliaments were sovereign and parliaments came to represent an independent authority in the kingdom, that was independent from the king itself, which of course led to a power struggle between the King and the parliament.
What were the to different approaches to roman law
Mos Gallicus → French approach - pioneered by Jacques Cujas
- Humanist / historical approach to Roman law.
- The Renaissance led to a greater interest in texts from Greco-Roman
antiquity, not just Christian texts. - Had very little impact on the modern practice of law
v.s.
Mos Italicus → Italian approach - pioneered by Bartolus
- Judicial approach to Roman law
- Focused on using Roman law to find solutions to problems, therefore their
interpretation was much broader.
- Bartolus developed a field called ‘international private law’ - Had immense impact on the modern practice of law
Why as the unification of french law not possible before the French Revolution
-there were over 700 customs in France
-Voltaire: if you travel through France, you switch legal sources more often than you switch horses
-Montesquieu: customary law reflects the diversity of the people in France
What developments led to code civil?
-In 1788, Louis XVI faced bankruptcy and called a special session of the Estates General to address the financial crisis.
-To enact more tax legislation, the agreement of the estates (nobility, clergy, and citizenry) was required.
-The Estates General consisted of three groups: nobility, clergy, and citizenry.
-Each estate expressed its opinions in the “books of grievances” (Cahiers de doleance) and submitted them to the King before the session.
-The Cahiers de doleance provided insights into the wishes of the population that the King could consider.
-Notably, there was a growing desire among the population for legal certainty and uniformity of the law.
-The call for legal certainty and uniformity of the law from the Cahiers de doleance contributed to the eventual development of the Code Civil.
When on may 1789, representatives of different groups (estates) gathered to vote on key issues. What conflict arose?
-conflict on voting-> Should each Estate have one vote (conservatory) or should it be one vote per person (progressive)?
-First Estate (clergy) had 300 representatives.
-Second Estate (nobility) had 300 representatives.
-Third Estate (citizenry) had 600 representatives.->The Third Estate wanted individual voting. King hesitated, but it was too late.
What was the tennis court oath (june 1789)
Individuals who were part of the third estate during he gathering and demanded individual voting, were frustrated since the king denied them that right and renamed themselves the constitutional National Assembly.
They left the meeting and took an oath on a tennis court not to disperse until a constitution was written.
What’s as the Bastille storming (july 1789)
In July 1789, a French crowd attacked and overran the prison Bastille, marking the start of the French Revolution.
How did the constitutional National Assembly draw up the first draft of the constitution in September 1791
-Declaration of Rights of Men and Citizen:
*Before working on the Constitution, the Assembly focused on this declaration.
*It included ideas of natural, inalienable, and sacred rights, inspired by the US Declaration of Independence and Bill of Rights.
*It incorporated philosophical and legal ideas from Rousseau, Beccaria, and Montesquieu.
What was Louis XVI’s Flight and Capture (1791)
In 1791, amidst the revolution, Louis XVI tried to escape to Varennes but was caught and held hostage.
-> the public saw it as the king’s attempt to escape and undermine the revolutionary reforms
-> The failed escape and subsequent captivity of Louis XVI heightened tensions between the monarchy and revolutionary forces. It contributed to the growing sentiment against the monarchy, eventually leading to more radical measures, including the abolition of the monarchy and the execution of Louis XVI in 1793.
What was the grande acceptance
Despite the chaos, the first constitution was drafted in September 1791.
Louis XVI accepted it (Grande acceptance), turning France into a constitutional monarchy.
How did France go from a monarchy to a republic 1791-1793
the King used his right of veto too often, in the eyes of the Assembly, he was suspended from his duties. -> this meant the factual end of constitutional monarchy
What was the result of the change from monarchy to republic in France
-In September 1792, the Assembly changed its name to Convention.
-Christianity was abolished and replaced by the worship of Reason.
-the king had to die – he was brought to trial and executed (guillotined) in January 1793.
-french republic was governed by Maximilian Robespierre
Why as the reign of Maximilian Robespierre backed known as teh reign of terror
Thousands of people were condemned to death by him. The result of his reign was a bloodbath
Who was the first draft written by
-719 articles
-written in 1793 by Cambaceres
What was the problem with the first draft of the civil code
the Jacobins, who dominated the Convention, found the draft code too complex, long, and traditional.
When was the second daft proposed
A year later, 1794 a second more progressive draft was proposed (297 articles).
What was the problem with the second draft that was proposed
-jacobins were overthrown after Robespierre had been guillotined, and a new moderate convention fourf the draft to be too radical and asked for the third code to be drafted
What was teh third draft like
-1104 articles
-moderate in character
-never adopted
When the third daft of teh code civil was finished, teh convention was dismantled, what was it replaced by
replaced by two legislative boards and by an executive body, known as the Directory.
Why as the third draft of the code civil never adopted
it was never adopted as the revision of the code was interrupted by the coup d’etat of Napoleon (1799). The new state structure implemented resembled the Roman republic with consuls. The first council was general Napoleon Bonaparte.
Who was the main drafter of the napoleon civil code
Portalis
What wa the napoleon civil code influenced and took courses from?
- Roman law – Pothier (had written commentary of the Digest)
- Customary law – Bourjon
- Natural law – Domat (‘The Civil law in its Natural Order’)
+added some revolutionary law
+added some ordinance law
What did napoleon change when he changed the draft himself
He added:
-divorce and adoption
because he didn’t have any children so he wanted to divorce his wife in order to have a son or as a scapegoat, adopt a child.
What did Domat (the natural law legal thinker) believe with regards to transfer of ownership
-the process of transferring ownership of something (like property or goods) should not depend on traditional steps like being the owner, physically handing over the item, or having a proper title.
- instead, Domat believed that what’s most important is that people freely agree on the terms of ownership. -> consensus (agreement between two parties involved)
-no no strict requirement for the physical exchange or specific legal documents; it’s more about the understanding and agreement between the people involved.
When was napoleon’s civil code published
1804
Was napoleon’s code civil a codification
-a codification needs an exclusivity clause (all questions that arise in the are of civil law should be resolved solely on the basis of the text of the civil code)
-NO ATTACHMENT OF EXCLUSIVITY IN NAPOLEONS CIVIL CODE -> gave the opportunity from judges to escape the authority of the code
-so no, not a codification
Why did they think it would be useless to attach the exclusivity clause to the code civil
-The reason given is that it was considered unnecessary to explicitly state this rule because it’s a basic principle that when new laws are introduced, they automatically replace the old ones.
-Additionally, one of the people involved in creating the French Code, Portalis, argued that judges might need to use different methods to interpret and apply the code effectively, even without a strict exclusivity clause.
Who was emperor in the french empire
-consul bonaparte -> had a plan to create a lasting ruling family where he would be the Emperor.
-In 1804, the Senate officially made him the Emperor. On the day of his coronation (a big ceremony for making someone a king or emperor), he invited the pope.
How was Consul Bonparte ‘s coronation different to other historical figures
-Napoleon didn’t let the pope crown him. Instead, he crowned himself and his wife.
What happned after the empire
The Napoleon code was deposed in 1870 and the title of the code was changed for the fourth and final time to its original name.
What was montesquieu’s opinion on the relationship between judiciary and legislative branch
the judiciary didn’t possess any real and independent power – only the legislator was allowed to hold opinions but he was to have the final word.
During the ancient french regime, why was it considered that judges had bread powers
the parliements were competent to issue so-called arrets de reglement: decisions that did not only apply to the litigants, but to all inhabitants that fell under the jurisdiction of that particular parliament - laws in form of a judicial decision
How was the role of judiciary changed after the French Revolution
-judges ought to administer the law and refrain from legislating.
-One of the first measures of the French Revolution aimed to ban the introduction of rules and regulations by the judiciary: judges could not interpret the laws; they were only allowed to apply them and submit them to the legislator in case of interpretation:
➔ authentic interpretation - refere legislatif : the law was interpreted by the power
that created it; French system obliged the judge to refer to the legislator for the interpretation
Why in 1807 did the legislator start referring its competence of interpretation to the executive
Because of the load of interpretation he had to go through
Summarise the case about the heart of De la Tour d’Auvergne
Who should have the possession of a general’s heart?
- Provision: heart was to be returned to the family
*Family can be interpreted in 2 ways: Natural family and legal family - Judges are only allowed to apply the law not interpret it
*Réfèré Legislaif: judges should consult the legislator for maters of interpretaion - Trick of the judges:
*Wording is neither obscure nor ambiguous, it is clear what (family) is
*Thus, no need to refer it - Use of systemaic interpretation
*Look at other statutes regarding family to discover its meaning
What was the conclusion of the De la Tour d’Auvergne – De Pontavice case
The Court said there wasn’t room for different interpretations, and the lower courts had correctly followed the order. Therefore, the general’s heart should stay with the de Pontavice family(narrow concept) , not the broader de la Tour d’Auvergne family.
In the case of heart of de la tour d’auvergne did the judge apply or interpret the concept of family
It’s not possible to apply a law without first interpreting it
What trick did the judge use to accomplish that he does not have to refer this
case to the executive in the case law tour d’ auvergne
The words are neither obscure nor ambiguous and do not contain any darkness regarding what they require.
What was the political reason behind why french kings were critical towards roman law
Political reason: next to french the German empire claimed to be roman (holy Roman Empire
How would teh southern part of France justify its use of roman law
They said it was custom
Who was charles du moulin
A French jurist, Charles du Moulin (1500-1566), commented on the customary law of Paris and believed that it could be used as a common law throughout the whole France and even be used in preference to Roman law as he aimed for uniformity of customary law.
- Du Moulin and the Coutume de Paris: wanted it to be the subsidiary source of law in all French regions, would lead to one uniied French customary law.
- Modern courts can no longer pronounce arrêts de règlement
*Could issue generally applicable regulaion in their district – means the judiciary had
legislaive funcion
*Nowadays legislaive and judiciary powers are separated
Summarise the Charles du moulin case
- Gave his money to his brother so that the brother could have a proper marriage
- Du Moulin thought he would never get married or have children anyway
- Did get married and got children, wanted the money back
- Invoked lex si umquam possibility to revoke gits ater the birth of his own children (under certain
circumstances)( codex of Justinian)
-brothers claim: based on what he believed was communism opinion-> obligation between brothers to constitute to the costs of marriage
What is An arrêt de règlement
is a decision made by Parliament in civil law to establish a rule of procedure, civil law, or custom. Example: In France, an arrêt de règlement was issued in 1804 to establish the Napoleonic Code, which became the basis for civil law in many countries.
What did the parliament decide on with regards to the du moulin case
-in favour of Charles, who received his property back and obtained general validity (arret de reglement) because according to communis opinio such an obligation did exist between parents and their children (legitima portio), but between brothers this had no validity.
What did Du Moulin hope to achieve with the study of the customs?
He believed that customs could supplement French law, it -could be used as a supplementary source. He aimed for uniformity of customary law. it could be even used in preference to Roman law
1. Local law
2. Customary law of Paris
3. Roman law
Look up the lex si umquam, (C. 8,55 (56),8) cited below on page 47. Explain
whether it would be applicable in the case of Du Moulin if the mos Gallicus would determine its interpretation. Why (not)?
No, because the mos Gallicus conversely from the mos Italicus wouldn’t interpret Roman law in their current society but instead they were interested at the historical background and would apply a grammatical interpretation, which can’t be the case since this provision talks about slaves owners (narrow definition).
Modern French courts are no longer supposed to pronounce arrêts de règlement.
Explain why.
Separation of powers/trias politica
In France today there’s a civil code
What was the basis of the authority of the French kings to issue Ordinances?
-> to give authority to the King the scholars believed that the King was the emperor of his own kingdom – the king is princeps in his own country because in worldly affairs he does not have a superior.
Sovereignty of King ironically based on writings of scholars of Roman law.
