Comparative Law Spring 2006 Professor Susanna Fischer

1. Comparative Law Spring 2006Professor Susanna Fischer CLASS 4 LEGAL FAMILIES FRENCH LEGAL SYSTEM: HISTORICAL BACKGROUND I

2. Legal Families • Why does Z/K prefer Aminjon/Nolde/Wolff divisions of seven legal families?

3. 7 Legal Families • French, German, Scandanavian, English, Russian, Islamic, Hindu

4. Style of Legal Families • What is meant by LEGAL STYLE?

5. LEGAL STYLE • 1. Historical Background • 2. Main mode of legal thought • 3. Distinctive legal Institutions • 4. Sources of law • 5. Ideology

6. HYBRID SYSTEMS • E.g. Scotland, South Africa, Quebec,

7. HISTORY OF THE FRENCH LEGAL SYSTEM • Virtually nothing is known about the legal system prior to the Roman conquest of Gaul in 52 B.C. • Gaul, as a Roman province, was subject to Roman law • 212 AD Edict of Caracalla made citzens of Gaul Roman citizens

8. GERMANIC PERIOD 100 B.C. to A.D. 500 • Tribal migrations – Visigoths (under Alaric d. 410) moved into Italy and sacked Rome, then into Spain, Franks moved across Rhine and into France, Vandals went across France, into Spain, to North Africa, and back across the Mediterranean to attack Rome from the South (409-55)

9. GERMANIC SETTLEMENT OF GAUL • In the 3rd and 4th centuries A.D., Germanic tribes start to move into northeastern Gaul • By the fall of the Roman Empire (476), much of Roman Gaul was controlled by Germanic tribes such as the Salic Franks, the Burgundians, and the Visigoths

10. The Dark Ages • In the 5th century, as Rome collapsed, invaded and plundered by Germanic tribes, Europe entered the Dark Ages, from which it would not emerge until at least the 10th century. • Widespread poverty, illiteracy, intellectual stagnation

11. Tribal Law • Each tribal group applied its own customary laws. For example, the Salic Frank kingdom was subject to Salic Frank customary laws, the Burgundian kingdom to Burgundian laws etc. . • As we have already learned, the Salic Frank king Clovis (482-511) codified the Salic law (lex Salica). The Visigothic customary law was also codified in 580 by Euric, and the Burgundian customary law (lex barbara Burgundionum) by Gundobad (474-516)

12. Salic-Frank period: A.D. 500 to A.D. 888 • Some centralization of the king’s authority during this period Clovis (482-511) established Merovingian Empire and converted to Christianity. But his success was ephemeral; the empire split into 3 parts

13. No Legislation in the Modern Sense • Clovis did not promulgate the Lex Salica as royal legislation or ordinance. It had to be approved by assemblies of Salic Frank freeman.

14. Salic Frank period: A.D. 500-888 • As well as the customary law, there were also codifications of the Roman law applying to Gallo-Roman subjects ot the Burgundians (lex Romana Burgundionum) and Visigoths (lex Romana Visigothorum (506) • Influence of Roman law declined more quickly in the north of Gaul than in the south-east

15. Salic-Frank period: A.D. 500 to A.D. 888 • Like Clovis (482-511), Karl the Great (Charlemagne) (768-814) was another strong Frankish king, establishing the Carolingian empire. • The Frankish empire lasted only another century after Charlemagne.

16. Charlemagne’s Frankish Empire at its Height (A.D. 800)

17. What was the legal system like during the Salic-Frank period? • For the first time in the history of Germanic law, legal rules were recorded by legislators e.g. Volksrechte such as Lex Salica ca. 500 A.D. (assembled by Clovis), Kapitularen, Konzilbeschlüsse, Formularsammlung, Royal and private deeds • Remember that even though there was one empire, there were many legal systems. A Saxon could not be subject to Frankish law. To enable his margraves to rule conquered peoples, Charlemagne had laws written down. He himself was illiterate, as were most of his subjects. • Much customary law was never written down. • Kapitularen were oral too – text was not the law.

18. Frankish Courts • Highest court: local assembly presided over by royal appointee, the comte (German equivalent called Markgrafen or margraves), who sat with 7 nobles (scabini) appointed by the comte, who had were the fact-finders and with the local freemen. • Comte went on circuit around the country • Gradually, role of freemen decreased, meeting only 3 times a year to deal with major cases and discuss major political affairs.

19. Carolingian Reforms • Under Charlemagne, an itinerant royal judge was introduced (Missi dominici) who acted as a supervisory and appellate jurisdiction the courts of the comtes and also heard cases involving the king’s interests.

20. Frankish Trials – Comtes’ courts (Gaugericht) • No public authority to issue writs; plaintiff had to force defendant to come to court. • Proceedings were oral • Accusation which must be denied under oath • Oaths had to be supported by oath- helpers • If no oath-helpers, must go to trial if folk decided it was necessary • Commonest method of trial were ordeals (e.g. hot water, hot iron, cold water) • Trial by battle also common

21. Royal courts (Missi dominici (Königsgericht)) • Not bound by the customary law, so procedure was different. • Written evidence was preferred. • Procedure was inquisitorial, not party driven. • Means of proof were more rational, including questioning of fact witnesses.

22. The Middle Ages: The Start of the Feudal Age • In the late 9th century, the Frankish empire was drifting apart • This period has been called the “darkest hour of the Dark Ages” • Disorder begat feudalism (armored knights, vassalage, fief, stone castles, chivalry, tensions, immunity, treachery) • How did this happen – next slide will explain . . .

23. Division of Charlemagne’s Empire • Charlemagne had 1 son, Louis the Pious • Louis the Pious had 3 sons and he divided the Frankish Empire into 3 parts for them • Charles got the western part (Franks) • Louis got Germany • Lothar got Italy/Benelux/Switzerland • After their fathers’ death, all three went to war. In 849, at Verdun, there was a final settlement, pretty much as Louis the Pious had originally divided things up.

24. Collapse of the Salic Frank empire: 849-888 • Further splits of the Empire • Incompetent Kings (Charles the Fat, Louis the Simple) • Magyar & Viking invasions

25. Capetian Dynasty • In 987 Capetians succeeded the Capetians as rulers of France • First Capetian, Hugh Capet, is pictured) • Early Capetians had no effective authority over entire country • Power was limited to Paris and parts of Loire Valley

26. Feudal France: 10th-13th centuries • Disorder of 10th century begat feudalism (armored knights, lords (seigneur), vassalage, oath of homage, fief, stone castles, chivalry, tensions, immunity, treachery). • King was sovereign feudal lord but did not have royal authority throughout France • Justice dispensed by feudal courts. No royal justice – just royal feudal court. • Civil and criminal procedure like mallus, e.g. trial by ordeal • ?

27. Absolute Monarchy: 17th and 18thCenturies • Royal legislation becomes main source of law • Parlement has advisory/registration role in legislation though King can override it. Parlement frequently opposes king’s legislation esp. in tax matters. • Some attempt to use King’s law to unify law: 17th century reform of procedure and commercial law under Jean Baptiste Colbert (Finance Secretary to Louis XIV): forerunner of Napoleon’s codification. However, customary laws still remained until the Revolution.

28. 1250-1300: Increasing Power of King • King gradually needs less and less support from Conseil of nobles and bishops to promulgate legislation of general effect ordonnancees • Buttressed by Roman law theories. Roman law had been revived starting in 11th and 12th century in Bologna and this revival spread to France (as well as elsewhere in Europe) in the 12th/13th century (Universities - Toulouse, Montpelier)

29. The North-South Divide • From the 13th century: • The South (Midi):Pays de droit écrit • The North: Pays de coutume • What’s the difference?

30. 1250-1300: Increasing Power of Royal Courts: The Parlements • Cour en Parlement (later just Parlement) is created in Paris. Split of king’s Conseil • Uses more rational means of proof than ordeal or battle. • Professional justices – sold, inherited • Introduces inquisitorial, written procedure based on Roman law (revival in 13th century) • All French trial lawyers are required to study Roman and Canon law at university • Parlement also has legislative function – drafting/registration of ordonnances

31. Dynastic Struggles for the Throne of France • 1328: Last Capetian dies. Philippe of Valois claims the thronel • 1337-43 – Hundred Years War between France and England. Starts when Plantagenet Edward III claims rights to French throne. • 1443 – English lose French possessions except Calais which they hold onto until 1565

32. Regional Parlements:15th-18th centuries • Regional Parlements are created (e.g. Toulouse 1443, Dijon 1477). By 1789, there are 17. • 3 levels of royal court. At top, Parlement. Lower royal courts, cours de baillage created in 13th century. • In 14th century, sièges présidaux are created (intermediate appellate courts) • There are still feudal courts but they are eclipsed by these royal courts from 13th century on

33. The Ancien Regime: Parlements and Customary Law • Despite royal orders in the 15th century to write down custom (by Charles VII etc.) (and in the process systematize it) France did not succeed in having a unified body of legal rules before the revolution. • The Parlements did not apply one system of royal law, but different customary laws (60 regional customs, 300 local customs) • Voltaire said a man could not ride from one province to another without having to change both his horse and his law

34. and 18thCenturies • Royal legislation becomes main source of law • Parlement has advisory/registration role in legislation though King can override it. Parlement frequently opposes king’s legislation esp. in tax matters. • Some attempt to use King’s law to unify law: 17th century reform of procedure and commercial law under Jean Baptiste Colbert (Finance Secretary to Louis XIV): forerunner of Napoleon’s codification. However, customary laws still remained until the Revolution.

35. 17th & 18th Century Treatise Writers: Search for General Principles • In 17th and 18th centuries, treatise writers such as Jean Domat (1627-1697) (Les Loix Civiles dans leur Ordre Naturel) and Robert Pothier (1695-1772) (15 treatises on private law) seek to extract general principles from customary law. • Would greatly influenced drafters of Code Civil in early 19th century. • But to codify the law would require the power of Parlements to be broken.

36. The French Revolution: 1789-99 • End of feudal privileges and abolition of hereditary nobility. • All citizens equal in status and having certain basic rights – Déclaration des Drois de L’Homme et du Citoyen of 1789 • Separation of church and state • Abolition of regional Parlements

37. Napoleon Bonaparte and the Codification of French Law • Napoleon came to power in 1799 • Centralized and consolidated government and codified the law in a Civil Code of 1804 (tort, contract, family, property law) • Also created the Conseil d’Etat

38. Subsequent Napoleonic Codes • Civil Procedure (1806) • Commercial Law (1807) • Criminal Law (1810)

39. WRAP-UP POINTS • Our study of French legal history showed that before the French Revolution (1789), French law was a patchwork of customary and regional laws, due to the power of the regional Parlements, despite the development of an absolute monarchy. • The Revolution toppled the King, aristocracy and Parlements from power. • When Napoleon took over, he codified the law in an attempt to centralize and systematize it. His Codes were strongly influenced by Roman law, as well as by the 17th century codes under Colbert and Louis XIV