Rafał Wojciechowski European Legal History Public law from the time of the French revolution

1. Rafał WojciechowskiEuropean Legal HistoryPublic law from the time of the French revolution

2. The French Revolution The ideological postulates of the French Revolution’s first phase were contained in the August Degrees eliminating feudalism (4-5.08.1789) and the Declaration of the Rights of Man and the Citizen (26.08.1789). The August Decrees divided feudalism into dominating and contracting. Dominating feudalism was characterized by: • Personal servitutes of some peasants • The existence of estate rights • Patrimonial courts • Serfdom • Royal monopolies and the tithe This type of feudalism was abolished. Some elements of contract feudalism remained, such as the right to collect rents and other payments resulting from ownership.

3. The French Revolution 2 Declaration of the Rights of Man and the Citizen (26.08.1789) was intended to be an introduction to a future constitution. We may identify in its provisions general principles about the foundations of the state and subjective rights. The state was based on the principles of sovereignty of the people and separation of powers. Inherent human rights were: • Equality • Freedom • Security • Property

4. The French Revolution 3 The Jacobin constitution of 1793 was intended to be preceded by a new declaration of the rights of man and the citizen, but the constitution never entered into force. In spite of that, the social postulates in that constitution, such as right to work, to social welfare and to education, remained since then on as postulates of all radical revolutions. The Declaration of the Rights of Man and the Citizen preceding the 1795 directorial constitution referred to the original one of 1789. It also listed the characteristics of a „good Frenchman”. Napoleon’s consular constitution of 1799 did not contain a separate declaration, but there was a separate chapter of the constitution titled On the exercise of civil rights.

5. Reforms in Prussia Among the neo-absolutist states in the Napoleon era, the broadest reforms were conducted in Prussia. In 1807-1813, chancellors Heinrich vom Stein and Karl August von Hardenberg eliminated the majority of feudal privileges, restructured the estate society, and expanded the rights of the lower social classes. Stein began and Hardenberg completed urban and rural reform.

6. Reforms in Prussia 2 The decree of 1807 eliminated personal serfdom, introducing personal freedom with the right to leave the land. The right to acquire land was also given to townspeople. The regulation decree of 1811 awarded patrimonial users 2/3 of the land they cultivated, and non-patrimonial were awarded 1/2. At the same time, the accumulation and new division of lands was also announced. Urban relations were reformed by statute in 1808. It eiminated the previous forms of estate and corporate life in cities. The city, as a commune, acquired the rights of a public person composed of the collective of its citizens.

7. Democratization of the state in the 19th century The French Revolution, begun in 1789, revolutionary events in Europe in 1830, and the Spring of Nations in 1848 contributed to a significant liberalization of social relations. Entering 2nd half of the 19th century, the majority of European countries had constitutions granting subjects various civil rights and freedoms. The Swiss constitution of 1874 particularly stood out, as it gave citizens all of the previously identified political rights, and added numerous social rights. Civil rights were granted the latest in Russia – this was done by Czar Nicholas II in a manifesto issued in October 1905.

8. The French model of administration After various and contradictory efforts undertaken during the French revolution, a durable system of public administration was given to France by Napoleon Bonaparte. The Napoleonic system assumed giving priority to public administration in managing the state. The statute of February 1800 led to a fundamental reconstruction of the previous republican administration based on the collegial system. The entire administration was based on: • Centralism • Bureaucratism • Hierarchical structure • Individual exercise of admininstrative functions • Division into ministries

9. The French model of administration 2 The Napoleonic reforms divided France into: • Departments • Districts • Communes The cantons remained from the previous republican system, but only as court and tax circuits. All civil servants were nominated, responsible before their superiors, and could be dismissed at all times. The head of a department was the prefect. He held authority over all of administration, with the few exceptions of non-unified administration: military, education, postal, etc.

10. The French model of administration 3 The prefect was nominated directly by the ruler. He was administratively subordinated to the Minister of Internal Affairs, and to the appropriate ministers in the exercise of particular tasks. Prefectural councils were commissions, composed of 2-5 individuals. They exercised administrative judicial authority in the first instance. In addition, departmental councils functioned as advisory and legislative bodies. Members of these councils were appointed, and their number depended on the population of the department (16, 20 or 24 members). Departmental councils primarily dealt with assessing and collecting taxes in districts.

11. The French model of administration 4 A vice prefect stood at the head of a district. He was also appointed directly by the ruler. Vice prefects were subordinated to prefects. A district council worked alongside vice prefects, with 11 members appointed by the ruler. It dealt mainly with matters of taxation. A mayor was at the head of a commune. The ruler also appointed mayors, save for smaller communes where this was done by the prefect. The mayor’s job was to manage day-to-day administrative affairs and perform the function of the civil registrar. The mayor could count on the assistance of the communal (municipal) council, whose members were appointed by the prefect. It numbered 10-36 members, and undertook resolutions in matters of taxation within the commune.

12. The French model of administration 5 Napoleon established administrative courts in France in the period 1799-1800. The two-tier principle functioned in administrative courts, and the Council of State played the primary role. The Council of State was formed in 1799, replacing the Privy Council which had been liquidated in 1791. The Council of State performed the following functions: • Legislative (opinions on draft legislation) • Administrative (interpretation of executive orders) • Judicial (administrative court) Members of the Council of State were appointed by the ruler. The prefectural councils served as the first instance in administrative court proceedings. Matters for administrative courts were specifically enumerated.

13. The French model of administration 6 In Napolean’s era France was formed into a clearly unitarian state. The territorial division was intended to maintain the strong centralized authority. Elements of self-government were only present at the communal level. During the Bourbon restoration (1814-1848) and succesive governments of Napoleon III, this state of affairs was maintained. Only in 1871 was it partially changed. Local self-government in its true sense was not introduced in France until 1982.

14. Ministers in republican France In the 1st Republic, during the Jacobin dictatorship, ministerial functions were performed by members of the Committee of Public Safety, who divided among themselves the governance of the state. During the Directorate, the nomination of ministers and control over them belonged to the governing director. Central administration of the 1st Republic, however, was characterised by numerous political and jurisdictional disputes. Napoleon imposed order during the period of his consular governments.

15. Ministers in republican France 2 During the 2nd republic, the president appointed and dismissed ministers. The ministers together formed the Council of Ministers. Ministers bore both political and legal responsibility. Their countersignature was required on all acts signed by the president. The administrative system created by Napoleon was maintained.

16. Ministers in republican France 3 In the 3rd Republic, ministers and other civil servants in central administration were appointed and dismissed by the president. Ministers composed the Council of Ministers, which was nominally chaired by the president. In practice, the extra-constitutional function of prime minister appeared, which was performed from 1876 by one of the ministers. Formally, the existence of the office of the prime minister was confirmed in 1934. Since that time the prime minister has not been required to direct one of the ministries, and is only the director of the government. The constitution did not specify the political responsibility of ministers. It developed through constitutional practice in the functioning of parliamentary-cabinet governments.

17. Ministers in republican France 4 Presidents, who could not govern in the way the constitution envisioned, abandoned the attributes of power officially given to them. In light of the fact that the government was dependent on a parliamentary majority coalition, the legislative power began to dominate the executive power. Many parties with radically different programmes entered the French parliament, which led to the longest-serving governemnt lasting only 3 years, while the shortest lasted 3 days. The government’s position was strengthened during World War I, and again during the Great Depression (1929-1933). The government was then given the power to issue decrees with the force of statutes.