Comparative Law Spring 2003 Professor Susanna Fischer

1. Comparative Law Spring 2003Professor Susanna Fischer CLASS 6 FRENCH LEGAL SYSTEM: HISTORICAL BACKGROUND I

2. General Trends: French Government and Law from the fall of Rome to the French Revolution • Gradual expansion (in fits and starts) of centralized royal political authority • Expansion of royal power never results in abolition of different regional laws and regional courts • 2 general families of regional laws • Let’s look at all this in more detail:

3. GERMANIC SETTLEMENT OF GAUL • In the 3rd and 4th centuries A.D., Germanic tribes start to move into northeastern Gaul (now France) • 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

4. The “Dark Ages” • In the 5th century, as Rome collapsed, invaded and plundered by Germanic tribes, Europe entered what some term the “Dark Ages”, from which it would not emerge until at least the 10th century. • Widespread poverty, illiteracy, intellectual stagnation • What was law like in what is now France during this period?

5. Tribal Law • Each Germanic 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. .

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

7. 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.

8. 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

9. 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.

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

11. What was the legal system like during the Salic-Frank period? • 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 some laws written down that affected everyone in the empire (capitularies). He himself was illiterate, as were most of his subjects. • 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 • Much customary law was never written down.

12. Frankish Courts • Highest court: local assembly presided over by royal appointee, the comte who sat with 7 nobles (scabini) appointed by the comte, who were the fact-finders, and with the local freemen. • Gradually, role of freemen decreased, meeting only 3 times a year to deal with major cases and discuss major political affairs.

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

14. Frankish Trials – Comtes’ courts • 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

15. Royal courts (Missi dominici) • Not bound by the customary law, so procedure was different. • Written evidence was preferred. • Procedure was inquisitorial, not party driven; did not rely on oaths or ordeal like Germanic tribal justice. • Means of proof were more rational, including questioning of fact witnesses.

16. The Middle Ages: The Start of the Feudal Age • In the late 9th century, the Frankish Carolingian empire was drifting apart due to a series of incompetent kings and Viking and Magyar invasions • This period has been called the “darkest hour of the Dark Ages” • What political system succeeded the Carolingian empire?

17. Capetian Dynasty: The Beginning of the French Nation • In 987 Capetians succeeded the Carolingians 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

18. 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

19. 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 late 12th century in Bologna and this revival spread to France (as well as elsewhere in Europe) in the 13th century.

20. 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 • 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

21. Dynastic Struggles for the Throne of France • Succession crisis at end of Capetian dynasty. 1328: Philippe of Valois claims the throne; challenged by English Plantagenet king Edward III • 1337-43 – Hundred Years War between France and England. Starts when Plantagenet Edward III claims rights to French throne. • 1347-50 Black Death • 1443 – English lose French possessions except Calais which they hold onto until 1565

22. Renaissance and Wars of Religion • Growing power of French kings such as Francis I (1515-1 • 1562-98 Wars of Religion between Catholics and Huguenots • Henri IV (first Bourbon king) converts to Catholicism, ending Wars of Religion • Edict of Nantes – some religious toleration for Huguenots (1598) • Period of art, learning, humanism, development of science

23. 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

24. The Ancien Regime: Parlements and Customary Law • Despite 2 royal orders in the 15th century to write down custom (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

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

26. 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.

27. 17th & 18th Century Treatise Writers: Search for General Principles in l’ancient droit • 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.

28. 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 Droits de L’Homme et du Citoyen of 1789 • Separation of church and state • Abolition of regional Parlements • Abolish l’ancien droit. Plan was to have one new system of law that would apply to all of France instead of the at least 366 different legal systems that existed in 1789.

29. 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 • Defeated at Waterloo in 1815