Article by Rodolfo Batiza
Knowledge of the sources of civi codes is valuable for several reasons. The natural curiosity of scholars needs to be satisfied when sources are identified inaccurately or not at all. Aside from this, disclosure of sources reveals something of the intellectual temper of the authors and of the time that brought the finished code into existence. On a more practical level, such knowledge aids interpretation of contemporary codes, especially when the antecedents of ambiguous code provisions can be brought to light. For Louisiana law, the sources of the French Civil Code of 1804 are particularly valuable. Indeed, any study of the French code is pertinent to Louisiana law; the French code was one of the principal sources of the Digest of the Civil Laws of 1808, and the Digest itself was the foundation of the Louisiana Civil Code of 1825. Thus, to the extent provisions of the French Civil Code of 1804 persist in the Louisiana Civil Code of 1870, currently in force, the investigation of the origins of the former will shed light on Louisiana law.
It is truly surprising that a subject of such interest has not received in France, with one exception, the detailed and critical analysis it deserves. At most, there are a few studies on specific aspects or on an individual writer as a source. The generally accepted view on the origin of the French Civil Code of 1804 was expressed by Planiol and Ripert:
The sources utilized in the drafting of the civil code were of various kinds. The principal ones were: customs, particularly that of Paris, Roman law, royal ordinances, statutes of the Revolution.
Customary law supplied most of the provisions concerning incapacity of married women, marital power, community of property among spouses, and many rules on successions.
Roman law was especially utilized for the system of ownership, the general rules on obligations, those of some contracts, the dowry system.
Royal ordinances were principally maintained for certificates relating to civil status (Ord. of April 1667), donations, wills, and substitutions (Daguesseau's Ords. of 1731, 1735, and 1747), proofs (Ord. of Moulins of 1556 and that of April 1667), and cancellation of mortgages (Edict of 1771).
Statutes of the Revolution were mainly retained in regard to majority, marriage and the mortgage system.
However, a few pages earlier, Planiol and Ripert had indicated:
[Domat] published in 1694 Les loix civiles dans leur ordre naturel, a celebrated work which places him in the first rank among those who prepared the way to the civil code. . . .
Bourjon contributed much to the preparation of the [civil] code. . . .
The works of Lamoignon were very useful to Chancellor Daguesseau and to the redactors of the civil code. . . . Their provisions [Daguesseau's ordinances on donations, wills and substitutions] have passed, in great part into the Code Napoleon. . . .
From [the Treatises of Pothier] the civil code has been drawn in great part.
The contradiction between the preceding statements, especially the last one, and the earlier list of the sources used in the drafting of the French code (customary law, Roman law, royal ordinances, statutes of the Revolution) is obvious: the list quite clearly omitted legal writings. This omission represents a serious flaw in the prevailing doctrinal position concerning the sources of the Code. With the exception of the statutes of the Revolution, the other sources are not direct sources. The Custom of Paris, Roman law, and the royal ordinances generally were adopted only indirectly through the writings of commentators, principally Domat and Pothier.
Unfortunately, this error is not the only one which has been committed. Writers have generally failed to acknowledge the influence exercised by the various projets of the Civil Code prepared during the revolutionary period. In fact, the Civil Code of 1804 completed a long process of gestation that began in 1789 with the Projet d'Olivier and continued through the Projet Philippeaux of the same year, the Plan Durand-Maillane of 1793, the three Cambaceres Projets of 1793, 1794 and 1795, respectively, the Jacqueminot Projet of 1799, and, lastly, the Projet of the Year VIII (1800). The failure to trace the influence of those projets has resulted in an erroneous identification of both the sources and structure or organization of the French Civil Code.
On the basis of a critical comparison of texts, the sources of the Civil Code of 1804 are: the Projet of the Year VIII; the various observations made on that projet by the Court of Cassation, the Courts of Appeal, the Council of State [Conseil d'Etat], the Tribunate, and the Legislative Body [Corps legislatif]; other observations that influenced the final drafting; and the writings of Domat and Pothier.
In turn, the sources of the Projet of the Year VIII are found in the Third Cambaceres Projet, the Jacqueminot Projet, the Rural Code, and the writings of Pothier and Domat, as well as those of Bourjon and Pocquet de Livonniere.
The sources of the Jacqueminot Projet were the Third Cambaceres Projet and Pothier's writings.
The sources of the Third Cambaceres Projet were mainly the Second and First Cambaceres Projets, and, to a lesser extent, Pothier and the Repertoire de jurisprudence by Guyot.
The Second Cambaceres Projet derived from the First Cambaceres Projet and, in small part, from doctrinal writings, especially those of Pothier.
The sources of the First Cambaceres Projet were the statutes of the Revolution concerning civil status, marriage, divorce, and ownership; the Custom of Paris; the Repertoire de jurisprudence by Guyot; the Decisions nouvelles by Denisart; the writings of Pothier and Domat; and the Plan Durand-Maillane.
The Plan Durand-Maillane had its sources in enactments of the Revolution, the Custom of Paris, and Roman law.
The Projet Philippeaux found inspiration in the general principles derived from revolutionary ideals, customary and Roman law, and the ideas of natural law.
The Projet d'Olivier had the following sources: Roman law, Domat's writings, the Custom of Paris, Lamoignon's Decisions, and, above all, natural law.
The pages that follow discuss generally the impact of the French Revolution on civil law legislation and then, chronologically, the eight projets that led to the French Civil Code of 1804. Finally, this article examines the influence of that code upon codification of the civil law in Louisiana.
About the Author
Rodolfo Batiza. Professor of Latin American Legal Studies, Tulane University School of Law. Bachiller en Ciencias Sociales 1935, Licenciado en Derecho 1941, Universidad Nacional Autonoma de Mexico. Translations are the author's unless otherwise indicated.
Citation
56 Tul. L. Rev. 477 (1982)