Preliminary Address on the First Draft of the Civil Code
Presented in the year IX by Messrs. Portalis, Tronchet, Bigot-Préameneu and Maleville, members of the government-appointed commission
A decree of the Consuls of 24 Thermidor VIII charged the Minister of Justice to convene us
"to compare the order followed in the writing of the drafts of the Civil Code published to date, to determine the outline we would consider most suitable for adoption, and to then discuss the principal foundations of civil legislation."
This decree is consonant with the desire expressed by all our national and legislative assemblies.
Our consultations are completed.
We are accountable to the fatherland and to the government for the understanding we formed of our important mission, and for the way in which we believed it ought to be carried out.
France, as well as the other great States of Europe, has successively expanded through conquest and through the free union of different peoples.
The conquered peoples and the peoples who remained free have always stipulated, in their capitulations and in their treaties, the maintenance of their civil legislation. Experience shows that men more readily change their masters than their laws.
Hence this prodigious diversity of customs found within a single empire. It might be said that France was but a society of societies. The fatherland was common, and the States separate and distinct; the territory was one, and the nations various.
Commendable magistrates had more than once conceived the plan to establish a uniform legislation. Uniformity is a kind of perfection that, in the words of one celebrated author, sometimes seize great spirits, but that infallibly strike small ones.
But how to give the same laws to men who, though subject to the same government, did not live in the same climate and had such different ways? How to eradicate customs to which the attachment was as to privileges, and regarded as so many impediments to the changing wishes of an arbitrary power? One feared weakening or even destroying through drastic measures, the common bonds of authority and obedience.
Suddenly a great revolution took place. All abuses came under attack; all institutions were questioned. At the simple word of one orator, the seemingly most unshakeable institutions crumbled; they were no longer rooted in either morals or conviction. These successes gave encouragement; and soon the caution that tolerated all things gave way to the desire to destroy everything.
One again conceived of uniformity in legislation, because one glimpsed the possibility of achieving it.
But could a good civil code be born in the midst of the political crises that were troubling France?
Every revolution is a conquest. Does one make laws during the transition from the old government to the new? By sheer force of circumstance, these laws are necessarily hostile, partial, revolutionary. One is swept along by the need to break with all customs, to weaken all bonds, to exclude all malcontents. The concern is no longer for the private relationships among men; there is only the political and general purpose. One seeks confederates rather than fellow citizens. All becomes public law.
If we fix our attention on civil laws, it is not so much to render them more wise or just, as to render them more favourable to those for whom it is important to have a taste of the regime being established. The authority of fathers is overturned, because children are more receptive to what is new. Marital authority is not respected, because it is in giving women greater freedom that new conventions and a new tone are introduced into the commerce of life. The whole system of successions must undergo drastic change, because it is expedient to prepare a new order of citizens through a new order of owners. Change is continually born of change, and circumstance of circumstance. Institutions follow one another in quick succession, with none being settled upon. And the revolutionary spirit seeps into everything. We call revolutionary spirit the exalted desire to violently sacrifice all rights for a political end, and to no longer allow any consideration other than that of a mysterious and variable State interest.
It is not at such a time that one can resolve to regulate matters and men with that wisdom which prevails in enduring institutions, and according to the principles of that natural equity of which human lawmakers ought to be merely the respectful interpreters.
Today, France breathes again, and the Constitution that guarantees its repose allows it to consider its prosperity.
Good civil laws are the greatest good that men can give and receive. They are the source of morals, the palladium of property, and the guarantee of all public and private peace. If they are not the foundation of government, they are its supports; they moderate power and help ensure respect for it, as though power were justice itself. They affect every individual; they mingle with the primary activities of his life; they follow him everywhere. They are often the sole moral code of a people, and they are always part of its freedom. Finally, good civil laws are the consolation of every citizen for the sacrifices that political law demands of him for the city, protecting, when necessary, his person and his property as though he alone were the whole city. Accordingly, the drafting of the Civil Code readily attracted the benevolence of the hero installed by the nation as its highest public official, whose genius imbues all things and who will always believe himself bound to toil for its glory, so long as there remains something for him to accomplish for our happiness.
But what a great task is the drafting of a civil legislation for a great people! The endeavour would be beyond human powers, if it entailed giving this people an entirely new institution and if, forgetting that civil legislation ranks first among civilised nations, one did not deign to benefit from the experience of the past and from that tradition of good sense, rules and maxims which has come down to us and informs the spirit of centuries.
Laws are not pure acts of power; they are acts of wisdom, justice and reason. The lawmaker does not exert an authority so much as a sacred function. He must not lose sight of the fact that laws are made for men, and not men for laws; that they must be adapted to the character, customs, circumstances of the people for whom they are made; that one must be sparing of the new in matters of legislation, because, while one can, in a new institution, calculate the advantages that theory offers, one cannot know all the disadvantages which practice alone can reveal; that one must leave well enough alone, if betterment is uncertain; that in remedying an abuse, one must imagine the dangers posed by the remedy itself; that it would be absurd to indulge notions of absolute perfection in matters susceptible only to relative goodness; that, rather than change laws, it is almost always more useful to present the citizenry with new reasons to love them; that history offers us the promulgation of no more than two or three good laws over the span of several centuries; and finally, the only ones entitled to propose changes should be those born felicitous enough to penetrate, by a burst of genius and by a kind of sudden flash of inspiration, the whole constitution of a State.
Consul Cambacérès a few years ago published a draft code in which the classification of subjects was as precise as it was methodical. This public official, wise and enlightened equally, would have left us nothing to do had he been able to give free rein to his insights and principles, and had pressing and fleeting circumstances not established in axioms of law errors in which he had no part.
After 18 Brumaire, a commission, composed of men whom the national will had placed in various constituted authorities, was formed to complete a project already too often taken up and abandoned. The useful work of this commission guided and abbreviated our own.
At the start of our consultations, we were struck by the view, so widespread, that, in the drafting of a civil code, a few very precise texts on each subject might suffice and that the great art lies in simplifying everything while foreseeing all.
Simplifying everything is a process on which there must be agreement. Foreseeing all is a goal impossible to attain.
There must be no unnecessary laws. They would weaken the necessary laws; they would compromise the certitude and majesty of legislation. But a great State such as France, which is both agricultural and mercantile, which encompasses so many different vocations, and which offers so many different types of industry, cannot have laws as simple as those of a poor or lesser society.
The Laws of the Twelve Tables are continually proposed as a model. But can the institutions of a nascent people be compared to those of a people that attained the highest degree of wealth and civilisation? Was it long before Rome, born for greatness and destined, as it were, to be the eternal city, recognised the inadequacy of its first laws? Were the changes that occurred imperceptibly in its morals not produced in its legislation? Did one not soon begin to distinguish between written law and unwritten law? Did one not see the successive appearance of senatus consulta, plebiscites, praetors' edicts, consuls' ordinances, councillors' rules, jurisconsults' responses or decisions, pragmatic sanctions, rescripts, edicts, emperors' Novels? The history of the legislation of Rome is more or less that of the legislation of all peoples.
In despotic States, where the prince is owner of all the land, where all commerce is carried out on behalf of the head of State and for his profit, where individuals have neither freedom, nor will, nor property, there are more judges and hangmen than laws. But wherever citizens have property to protect and defend, wherever they have political and civil rights, wherever honour counts for something, a certain number of laws are needed to confront all situations. The different types of property, the different kinds of industry, the different situations of human life demand different rules. The lawmaker's concern must be proportional to the multiplicity and importance of the matters to be decided. Hence, in the codes of civilised nations there is that scrupulous foresight which multiplies individual cases and seems to make an art of reason itself.
We therefore did not think it necessary to simplify the laws to the point of leaving citizens without rules or guarantees regarding their most important interests.
We have also guarded against the dangerous ambition of wanting to regulate everything and foresee everything. Who would imagine that those who always consider a code too voluminous are the very ones who dare to imperiously give the lawmaker the dreadful task of leaving nothing to the judge's decision.
Whatever one might do, positive laws could never entirely replace the use of natural reason in life's affairs. The needs of society are so varied, the communication of men so active, their interests so numerous, and their relationships so far reaching, that the lawmaker cannot possibly foresee all.
The very matters on which he fixes his attention involve a host of particulars that escape him or are too contentious and too volatile to be the subject of a statutory enactment.
Moreover, how does one bind the action of time? How to go against the course of events, or the imperceptible inclination of morals? How to know and calculate in advance what experience alone can reveal? Can foresight ever extend to things beyond the reach of thought?
A code, however complete it may seem, is no sooner finished than thousands of unexpected questions present themselves to the magistrate. For these laws, once drafted, remain as written. Men, on the other hand, never rest. They are always moving; and this movement, which never ceases and whose effects are variously modified by circumstances, continually produces some new fact, some new outcome.
Many things are therefore necessarily left to the authority of custom, to the discussion of learned men, to the arbitration of judges.
The function of the statute is to set down, in broad terms, the general maxims of the law, to establish principles rich in consequences, and not to deal with the particulars of the questions that may arise on every subject.
It is left to the magistrate and the jurisconsult, fully alive to the overall spirit of laws, to guide their application.
Hence, in all civilised nations one always sees, alongside the sanctuary of laws and under the watchful eye of the lawmaker, the formation of a body of maxims, decisions and doctrine that is refined daily by practice and by the impact of judicial deliberations; that continually grows from all the knowledge acquired; and that has constantly been regarded as the true supplement of legislation.
Those who profess jurisprudence are criticised for having multiplied the subtleties, compilations and commentaries. This criticism may be well founded. But in what art, in what science has it not proven merited? Ought a particular class of men be accused of what is merely a general malady of the human spirit? There are times when one is condemned to ignorance because there are too few books; there are other times when instruction is difficult because there are too many.
If there is one area in which excessive commentary, discussion and writing can be excused, it is, above all, in jurisprudence. One will readily believe this if one considers the innumerable threads that tie citizens; the development and successive progression of subjects with which the magistrate and jurisconsult must concern themselves; the course of events and circumstances that alter social relationships in so many ways; finally, the continuous action and reaction of all the diverse passions and interests. He who criticises the subtleties and commentaries is the very one who, in a personal suit, becomes the most subtle and fastidious of commentators.
It would doubtless be desirable for all matters to be provided for by laws.
But, in the absence of a specific enactment on every subject, an old, consistent and well-established custom, an unbroken succession of similar rulings, a received opinion or maxim serves as law. When not guided by anything established or known, when faced with an entirely new occurrence, one returns to the principles of natural law. For while the foresight of lawmakers is limited, nature is limitless; it applies to every thing that may be of interest to men.
All this assumes compilations, compendia, treatises, numerous volumes of studies and dissertations.
The people, it is said, cannot untangle from this maze what ought to be done or not done to ensure the protection of their possessions and their rights.
But would even the simplest code be within the grasp of all classes of society? Would passions not be perpetually engaged in distorting the true meaning? Is there no need for a certain experience in order to apply laws sensibly? In what nation, moreover, have laws that are simple and few in number sufficed for long?
One would be mistaken in thinking there could exist a body of laws that would anticipate every possible case, yet be within the grasp of the humblest citizen.
Given the present state of our societies, it is most fortunate that jurisprudence forms a science that can focus talent, flatter pride and awaken emulation. A whole class of men now devotes itself to this science, and this class, dedicated to the study of laws, provides advisers and defenders to citizens who could not find their own way and defend themselves and is becoming a kind of seminary of the magistracy.
It is most fortunate that there are compendia, and a continuous tradition of customs, maxims and rules, so that one must, in a sense, judge today as one judged yesterday; and that there are no variations in public judgements other than those brought about by the advance of knowledge and force of circumstance.
It is most fortunate that the need for the judge to improve his knowledge, to investigate, to examine in depth the matters that come before him, never allows him to forget that, while some things are subject to his reason, none of them are subject purely to his whim or desire.
In Turkey, where jurisprudence is no art, where the bacha can rule as he wants when not hindered by orders from above, one observes that citizens neither demand nor receive justice without dread. Why is there not the same anxiousness about our judges? Because they have a wide experience in matters; they have insight and knowledge; and they believe they have a constant duty to consult with each other. There is no telling the degree to which this habit of science and reason mitigates and regulates power.
To balance the authority that we give judges to rule on matters not determined by statutes, we invoke the right of every citizen to be judged only according to a previous and constant law.
This right cannot be ignored. But, for its application, it is necessary to distinguish between criminal matters and civil matters.
Criminal matters, which turn only on certain actions, are defined. Civil matters are not. They encompass without limitation all the actions and all the complex and various interests that may give rise to a dispute between men living in society. Consequently, civil matters are not susceptible to the foresight that can be brought to bear in criminal matters.
Secondly, in civil matters, the dispute is always between two or more citizens. An issue of property or any other similar issue cannot remain unresolved between them. A decision must be taken; the dispute must somehow be brought to an end. If the parties cannot themselves reach an agreement, what is the State to do? Unable to give them laws on every subject, it offers them, in the person of the public magistrate, an informed and impartial arbitrator whose decision prevents them from coming to blows, and he is certainly more beneficial to them than a prolonged dispute, neither the repercussions nor the outcome of which they could predict. The apparent arbitrariness of equity is better than the turmoil of passions.
In criminal matters, however, the dispute is between the citizen and the State. The intent of the State can only be represented by that of the law. The citizen whose actions do not contravene the law will therefore not be disturbed or accused on behalf of the State. Here, not only is there no need to judge, but there is no matter to be judged.
The law that serves as the basis for the accusation must precede the action of which one is accused. The lawmaker must not strike without warning; otherwise, the law, contrary to its fundamental purpose, would not set out to make men better, but only to make them more miserable, which would go against the very essence of things.
Thus, in criminal matters, where the judge's action can be based only on a formal, pre-existing enactment, there must be specific laws and no jurisprudence. This is not so in civil matters. Here, there must be jurisprudence, because it is impossible to regulate every civil matter by laws and because it is necessary to end disputes between individuals that cannot be left unresolved, without forcing every citizen to become the judge in his own case, and not forgetting that justice is the first debt of sovereignty.
On the basis of the maxim that judges must obey laws and are prohibited from interpreting them, the courts, in recent years, have been referring the litigants to the legislative authority, through summary procedures, every time they lacked law or found the existing law obscure. The court of cassation has continually considered this abuse as a denial of justice.
There are two kinds of interpretation: one doctrinal, and the other authoritative.
Doctrinal interpretation consists in grasping the true meaning of laws, in applying them judiciously and in supplementing them in cases where they do not apply. Can one conceive of fulfilling the office of judge without this type of interpretation?
Authoritative interpretation consists in settling issues and doubts by means of rules or general provisions. This mode of interpretation is the only one denied the judge.
When the law is clear, it must be heeded; when it is unclear, the provisions must be further elaborated. If there is no law, then custom or equity must be consulted. Equity is the return to natural law when positive laws are silent, contradictory or vague.
To compel the magistrate to resort to the lawmaker would be to admit the most grievous of principles; it would be to revive among us the disastrous legislation of rescripts. For when the lawmaker steps in to rule on matters arising and heatedly debated between individuals, he is no more protected from surprises than the courts. There is less reason to dread the controlled, timid and circumspect arbitrariness of a judge who can be overturned, and who can be prosecuted for abuse of authority, than the absolute arbitrariness of an independent authority that is never accountable.
Parties who have dealings with each other in an area not defined by positive law are subject to accepted customs or to universal equity in the absence of any custom. Now, observing a point of custom and applying it to a private dispute is a judicial act, not a legislative one. The very application of this equity or this distributive justice, which follows and must follow, in each particular case, together with all the little threads that tie one litigant to the other, can never be left to the lawmaker, who is only the agent of this justice or this general equity and who, without considering any particular circumstance, embraces the universality of things and persons. Laws pronounced on private matters would, then, often become suspected of bias and always be retroactive and unjust for the parties to a dispute that preceded the pronouncement of these laws.
Furthermore, resorting to the lawmaker would result in disastrous delays for litigants and, even worse, would compromise the wisdom and sanctity of the laws.
In effect, the law governs everyone: it considers men collectively, never individually; it must not involve itself in individual events or disputes that divide citizens. If it did, new laws would have to be made every day: their sheer number would stifle their dignity and compromise their observance. The jurisconsult would have no function, and the lawmaker, bogged down in the particulars, would soon be no more than a jurisconsult. The legislative power would be besieged by private interests, distracting it, at every turn, from the general interest of society.
There is a science for lawmakers, just as there is one for magistrates; and the one does not resemble the other. The lawmaker's science consists in finding, on every subject, the principles most favourable to the common good. The magistrate's science consists in applying those principles, ramifying them, extending them, through wise and reasoned application, to private hypotheses; in analysing the spirit of the law when the letter is silent; and in not exposing himself to the risk of being, by turns, slave and rebel, and of disobeying out of a sense of servility.
The lawmaker must keep a watchful eye on jurisprudence; it can enlighten him, and he, for his part, can improve it; but jurisprudence there must be. In this vastness of the diverse subjects that constitute civil matters, and the judgement of which entails, in the majority of cases, less the application of a specific enactment than the combining of several enactments that lead to, rather than contain, the decision, one can no more do without jurisprudence than without laws. Now, it is to jurisprudence that we leave those rare and exceptional cases that cannot fit within the framework of a reasonable legislation, the too-volatile and too-contentious particulars that must not occupy the lawmaker, and all the subjects it would be futile to try and foresee, or whose hasty prediction could not be free of risk. It is left to experience to continually fill the voids we leave. The codes of peoples are made over time; but, strictly speaking, we do not make them.
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