French law
French law
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Roman law was in practice in France
before the collapse of Western Roman Empire in 476 A.D.
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However, Roman law was in practice after
the collapse of the empire.
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In 506 A.D. King Alaric II of Visigoth passed
a statute based on Roman law, (which helped the survival of Roman law in the
southern France.)
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In the northern part the Franks
established Frankish state and replaced Roman law with their own customary law
of Germanic origin (issued statutes like Lex Salica or Salian law.)
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The universities like Montpellier and
Toulouse in the 12th century taught
Roman law. ( which helped
to filter Roman law Northwards without displacing the customary law of
Franks.)
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Thus,
the south had written law ( droit ecrith), and the north had
customary law (droit coutumier ).
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The northern customary law was based on
oral tradition and the judge who did not know the appropriate rule of the
relevant coutume had to discover it by inquiry with local inhabitants.
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It created uncertainty and Charles II
(in 1415) ordained that the customs of various territories should be written
down.
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It took a longer time. Most of the customs
were compiled during the first half of the 16th century. Gradually, after 1650,
the idea arose that the common law of France resided in all the customs.
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The compilation of custom helped to
reduce uncertainty in law but it could not diminish the substantial differences
between them.
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The judges had to fill gap, they tried
to develop unitary rules.
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By the fourteenth century, King started
to appoint judges trained in the law .
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The assimilation of the particular
customary law was promoted by the Customs of Paris (Coutume de Paris)
1510.
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France was saved from massive reception
of Roman law (unlike in Germany) because of the kings’ success in having the
customs recorded in the 16th century.
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It helped for the development of common
customary law.
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The code civil was the amalgamation of droit
ecrit and droit coutumier.
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By the end of 18th century,
all the important customs had been recorded according to royal mandate.
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Despite all these efforts, France had no
unified private law.
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Thus, Voltaire commented ‘Is it not an
absurd and terrible thing that what is true in one village is false in another?
What kind of barbarism is it that citizen must live under different laws? When
you travel in this kingdom you change legal system as often you change horses.’
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People thought of unified French law for
half century however, it had not been possible until the French revolution and Napoleon's
accession to the power.
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French revolution of 1789 brought
drastic change in social structure.
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The law of the revolutionary period (between
the first sessions of the Constituent Assembly and coming to the power of Napoleon1789-1799)
altered the traditional social order thoroughly.
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Feudal institutions, old judiciary and
old territorial division of the country were abolished.
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The vision of enlightened society
forwarded by Voltaire and Rousseau i.e. man is rational and responsible
creature who acquires by birth an inalienable right to freedom of conscience,
belief and economic activities prevailed.
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This thinking brought radical change in
the field of private law including family law.
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Restraints on marriage laid down by the
cannon law were abolished.
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Marriage was recognized as civil contract and
parental control was also minimal.
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The wife was declared equal to her
husband and all children were given equal right.
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The revolutionary governments were
committed to consolidation of legal changes in set of codes but it was not
possible until Napoleon come to power.
The French Civil Code
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The Code Civil of 1804 is not only the
heart of private law in France but also the great model for the codes of
private law of the whole Romanic Germanic family.
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It has been the model code for civil law
tradition and inspiration for modern legal code of humankind.
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The law taught in the universities was
founded on reason to become the law for universal application. It was the
victory of the natural law school based on new thought of personal right and
rule of law.
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It helped the systematization of law by
casting it in logical proposition in scientific method. The thinking that human
reason was the sole instrument for the establishment of just rules became
dominant.
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After the French Revolution,
codification became not only possible but also almost necessary.
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The Code was drafted by a commission of
four men consisting Trinchet (president of Court de Cassation), Bigot De
Preameneu (representative of Coutumier), Portalis (an administrative officer)
and Maleville (a judge of Court de Cassation).
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The Code was passed in 36 separate
statutes and finally consolidated by a law of 1804 and brought into force under
the title Code Civil des Francais. Later it is also known as Napoleonic
Code.
Major provisions of the code
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The Code is divided in four
parts.
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The first book deals with the law of
persons including the enjoyment of civil rights, the protection of personality,
guardianship, family and parental relationship (including dissolution of
marriage or divorce).
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The second book deals with the law of
things including the regulation of property rights and ownership.
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The third book deals with the methods of
acquiring rights: by succession, donation, marriage settlement, and
obligations.
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In the last chapters, the code regulates
a number of nominate contracts, legal and conventional mortgages, limitations
of actions, and prescriptions of rights.
French Civil code
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Although the code represents the post
revolutionary era it subordinated women to their fathers and husbands, who
controlled all family property, determined the fate of children.
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It is said that in the area of family
relations the Napoleonic Code was less a codification of revolutionary
innovations than a reaction against them.
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By reverting to patriarchal standards
that strengthened the prerogatives of the husband and father, it wiped out
important gains that women had made during the Revolution.
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The Code Civil was the first
codification in the world to loosen all the bonds of feudalism and implemented
the demands of revolution.
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It gave equality to all citizens, secularized
family law, emancipated landed property, granted freedom to engage in economic
activities and protected the family.
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The authors of the Code wanted to
present a comprehensive code, a rational regulation in the field of private
law. It was thought to be without gap and supposed to provide answer to all
questions.
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After the development of business and
industrialization, it had been necessary for the court to develop law through
the means of interpretation in contract and industrial law.
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Therefore, large parts of French private
law have ceased to be droit ecrit (written law) and have become common
law almost without our noticing it. (The famous and striking opposition between
the source of law recognized by Anglo-Section and French law respectively have
been very materially reduced.)
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By gradual development by the court and
legislator, the Code survived for more than 200 years.
Division of Law
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French law is divisible into public and
private law.
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Public law includes constitutional law
and administrative law. Private law includes civil and criminal law.
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There are four areas of law i.e. civil,
criminal, constitutional and administrative.
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Civil law includes the law of obligation
or the law of contract and tort.
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Criminal law (Criminal Code)I prescribes
punishment for many offences. Constitutional law determines the framework of
government and fundamental rights of the French citizen. Administrative law
governs the relationships between the state and private citizens or
organizations.
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Administrative law is the fully-fledged
area of law of France like civil law and criminal law. It has its own court
system, the administrative court.
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Section 4 of the Code provides the at if a
judge refuses to make decision on the ground that law is silent, or obscure or
inadequate, he may be held responsible of denial of justice. Section 5 forbids
judges to create new rules by means of precedent. However, the provision of
Section 4 provides room for judicial creativity.
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