Preliminary Address on the First Draft of the Civil Code
We thought it useful to begin our work with a preliminary book, Of law and legislation in general.
Law is universal reason, supreme reason based on the very nature of things. Legislation is, or ought only to be, law reduced to positive rules, to specific precepts.
Law is morally imperative, but in itself is not constraining. It guides; laws command. It is the map; and laws, the compasses.
Diverse peoples coexist only under the rule of law; the members of a city are governed, as men, by law, and as citizens, by legislation.
Natural law and the law of nations differ not at all in their substance, only in their application. Reason, as it governs all men for all time, is called natural law, and it is called the law of nations as it governs the relations among peoples.
If one speaks of a natural law of nations and a positive law of nations, it is to distinguish the eternal principles of justice that peoples have had no part in making, and to which the various bodies of nations, and every individual, are subject, from the capitulations, treaties and customs that are the work of peoples.
In reviewing the definitions that most jurisconsults have given law, we noticed how flawed these definitions are. They do not allow us at all to appreciate the difference that exists between a moral principle and a State law.
In every city, the law is a solemn declaration of the intent of the sovereign power with regard to a matter of common interest.
All laws pertain to persons or property, and to property for the use of persons.
It is important, even in dealing only with civil matters, to provide a general idea of the various types of laws that govern a people; for all laws, of any kind, are necessarily connected to each other. There is no private matter into which some aspect of public administration does not enter, just as there is no public matter that does not involve, to some degree, the principles of that distributive justice which governs private interests.
To understand the various types of laws, one need only observe the various kinds of relationships that exist among men living in the same society.
The relationships of those who govern with those who are governed, and of each citizen with every other, are the concern of constitutional and political laws.
Civil laws govern the relationships, natural or contractual, forced or voluntary, necessary or merely convenient, that bind every individual to one or more other individuals.
The civil code comes under the protection of political laws; it must be harmonious with them. It would be a great wrong were there to be conflict in the maxims that govern men.
Penal or criminal laws are not so much a particular type of laws as the sanction of all others.
They do not regulate, in the strict sense, the relationships among men, but the relationships of each man to the laws enacted for the benefit of all.
Military affairs, commerce, taxation, and a number of other subjects presume particular relationships that do not belong exclusively to anyone of the previous divisions.
Laws, strictly speaking, differ from mere regulations. It is the function of laws to set down, in every sphere, the fundamental rules and to determine the basic conventions. The particulars of enforcement, the provisional or incidental precautionary measures, the transitory or inconstant objects, in a word, anything that requires far more the vigilance of the administering authority than the intervention of the instituting or creating power, is the concern of regulations. Regulations are acts of magistracy, and laws are acts of sovereignty.
As laws cannot create obligations unless they are known, we concerned ourselves with the form of their promulgation. Notice cannot be given to every individual. We are forced to content ourselves with a relative publicity, which, if it cannot give every citizen, in time, knowledge of the law with which he must comply, at least manages to prevent any arbitrariness concerning the moment from which the law is to be enforced.
We determined the various effects of the law. It permits or it prohibits. It orders, it establishes, it remedies, it punishes or it rewards. It is binding, without distinction, on all those who live under its rule. Even foreigners, during their residency, are the fortuitous subjects of the laws of the State. To inhabit the jurisdiction is to submit to its sovereignty.
That which is not contrary to the laws is lawful. But that which complies with them is not always fair. For laws have more to do with the political good of the society than with the moral perfection of the man.
As a rule, laws have no retroactive effect. The principle is unassailable. We have, however, limited this principle to new laws; we have not extended it to those that merely mention or explain old laws. Intermediate errors or abuses do not make law, unless, in the interval between one law and another, they have become established through settlements, judgments of last resort, or arbitral decisions that have acquired the force of res judicata.
Laws remain in effect until they are repealed by other laws or fall into abeyance. If we have not formally authorised the means of repeal by abeyance or disuse, it is because it might have been perilous to do so. But one cannot ignore the influence and usefulness of this unintentional accord, this invisible power by which, without upheaval or commotion, peoples dispense with bad laws, and which seems to protect society from the surprises sprung on the lawmaker, and the lawmaker from himself.
The judiciary, established to apply laws, needs to be guided in this application by certain rules. We have outlined them. They are such that the private reason of no man can ever prevail over the law, which embodies public reason.
Having drafted the preliminary book Of law and legislation in general, we went on to consider the subjects to be defined and regulated by civil laws.
France, at one time divided into countries of customary law and countries of written law, was governed partly by customs, and partly by written law. A number of royal decrees were common throughout the empire.
Since the Revolution, French legislation has undergone, in important respects, considerable change. Should all that is new be left out? Should all that is old be discounted?
Written law, which is made up of Roman laws, has civilised Europe. Our forefathers' discovery of the Justinian Compilation was a kind of revelation for them. It was then that our courts assumed a more regular form, and the awesome power of judging became subject to principles.
Most authors who criticise Roman law as bitterly as they do rashly, blaspheme that of which they are ignorant. One is soon convinced of this if, in the collections that have brought this law down to us, one can distinguish those laws worthy of being termed written reason, from those that concerned only specific institutions, foreign to our situation and our customs; if one can distinguish the senatus consulta, the plebiscite, the edict of the magnanimous, from the emperors' rescripts, a kind of legislation pleaded for, granted on credit or importunity, and fabricated in the courts of so many brutes who devastated Rome and sold judgments and laws publicly.
Among our customs are doubtless some that bear the mark of our initial barbarism; but there are others that are a credit to the wisdom of our fathers, that have shaped the national character, and that are worthy of better times. We have renounced only those whose spirit has given way to another spirit, the letter of which is merely a daily source of interminable controversies, and which are repugnant to both reason and our morals.
In examining the last royal decrees, we kept all those that concern the essential order of societies, the maintenance of public decency, the security of patrimony, and the general prosperity.
Of the laws published by our national assemblies on civil matters, we have respected all those which are connected with the enormous changes the political order has undergone, or which, in themselves, struck us as obviously preferable to worn out and flawed institutions. Change is necessary when the most disastrous of all innovations would be, as it were, not to innovate. One must not give in to blind prejudices. All that is old was once new. What is essential is to impart to the new institutions that character of permanence and stability that can guarantee them the right to grow old.
We have made, if one can express it this way, a compromise between written law and customs whenever we were able to reconcile their provisions, or to modify some in light of others, without disrupting the unity of the system or offending the general spirit. It is useful to protect all that need not be destroyed: laws must show consideration for common practices, when such practices are not vices. Too often one reasons as though the human race ended and began at every moment, with no sort of communication between one generation and that which replaces it. Generations, in succeeding one another, mingle, intertwine and merge. A lawmaker would be isolating his institutions from all that can naturalise them on earth if he did not carefully observe the natural relationships that always, to varying degrees, bind the present to the past and the future to the present; and that cause a people, unless it is exterminated or falls into a decline worse than annihilation, to always resemble itself to some degree. We have, in our modern times, loved change and reform too much; if, when it comes to institutions and laws, centuries of ignorance have been the arena of abuses, then centuries of philosophy and knowledge have all too often been the arena of excesses.
Marriage, the government of families, the status of children, guardianships, matters of domicile, the rights of absent persons, the different kinds of property, the different means of acquisition, protecting or increasing one's property, successions, contracts: these are the main subjects of a civil code. We must explain the principles that motivated our draft laws in these important areas, and state the relationships these laws may have with the common weal, with public morals, with the happiness of individuals, and with the present state of affairs.
It is only in these recent times that we have had clear notions about marriage. The blending of civil institutions and religious institutions had obscured the initial concepts. A few theologians saw in marriage only the sacrament; most jurisconsults saw in it only the civil contract. Some authors made of marriage a kind of hybrid act encompassing both a civil contract and an ecclesiastical one. Natural law counted for nothing in the primary and greatest act of nature.
The confused notions held about the essence and characteristics of conjugal union caused daily predicaments in legislation and in jurisprudence. There was always conflict between the clergy and the empire when it came to making laws or pronouncing judgements on this important matter. Nothing was known of what marriage itself was, of what civil laws had added to natural laws, of what religious laws had added to civil laws, and of the scope of the authority of these various types of laws.
All these uncertainties vanish, all these predicaments dissipate, as one looks back to the true origin of marriage, on the selfsame date as the Creation.
We became convinced that marriage, which existed before the founding of Christianity, which preceded all positive law, and which derives from the very essence of our being, is neither a civil act nor a religious act, but a natural act on which lawmakers have fixed their attention and which religion has sanctified.
Roman jurisconsults, in speaking of marriage, often confused the physical aspect of nature, common to all animate beings, with natural law, which governs men specifically and is based on the relationships that free and intelligent beings have with their own kind. Hence, we questioned whether there was any evidence of morality in marriage considered in the purely natural order.
We appreciate that non-intelligent beings, who yield only to blind impulse or instinct, have with each other only fortuitous encounters or periodic engagements devoid of any morality. But in men, reason always intervenes, to varying degrees, in every act of life, emotion is next to appetite, right follows instinct, and all is refined or ennobled.
No doubt, the general desire one sex feels for the other belongs exclusively to the physical order of nature. But the choice, the preference, the love that determines this desire and fixes it on a single subject, or at least gives it a greater degree of energy for the preferred subject; mutual regard, the reciprocal duties and obligations that are born of the union once formed, and that develop between reasonable and sensitive beings; all that belongs to natural law. Consequently, it is no longer a mere encounter we see, it is a real contract.
Love, or the feeling of preference that forms this contract, gives us the solution to all the problems that arise surrounding the plurality of women or men in marriage. For such is the empire of love that, except for the one loved, one sex is no longer of importance to the other. The preference one grants, one wishes to receive; the engagement must be mutual. Let us be eternally grateful to nature, which, while giving us irresistible instincts, has placed in our own heart the control and check of these instincts. It might be said that in certain climates and in certain circumstances, polygamy is less appalling than in other circumstances and in other climates. But in all countries, it is irreconcilable with the essence of an engagement whereby one gives oneself completely, body and heart. We have therefore established the maxim that marriage can be the engagement of two individuals only, and that for as long as a first marriage survives, it is forbidden to contract a second.
The coming together of two sexes that nature has made so different only to unite them soon has appreciable effects. The woman becomes a mother: a new instinct develops; new emotions, new duties bolster the initial ones. Before long, the woman's fertility is evidenced again. Nature imperceptibly extends the duration of the conjugal union, cementing this union each year with new delights, and new obligations. It makes use of every situation, every event, to produce a new order of pleasure and virtues.
The upbringing of children demands, over a long succession of years, the joint care of their noble progenitors. Men exist a long time before they know how to live, just as, towards the end of their career, they often cease to live before they cease to exist. The cradle of childhood must be protected from the ills and wants that beset it. In later years, the mind needs cultivation. It is important to keep watch over the first stirrings of the heart; to repress or guide the first surgings of passions; to protect the exertions of a budding reason from all the sorts of seductions that surround it; to keep a close watch on nature so as not to thwart what is at work, in order to achieve with nature the great work in which it deigns to involve us.
All this time, the husband, the wife, the children, brought together under the same roof and by the dearest interests, acquire the habit of the tenderest affections. The two spouses feel the need to love each other, and the need to love each other always. The tenderest emotions known to men, conjugal love and paternal love, are born and strengthened.
Old age, if one may say so, never comes to faithful and virtuous spouses. In the midst of the infirmities of this age, the burden of a languishing life is lightened by the fondest memories, and by the ministrations, so necessary, of the young family, into which one is reborn and which seems to pull us back from the edges of the grave.
Such is marriage, considered, in itself and in its natural effects, independent of all positive law. It offers us the fundamental notion of a contract strictly speaking, and of a perpetual contract by destination.
As this contract, according to the observations we have just presented, subjugates the spouses to each other, to their respective obligations, as it subjects them to shared obligations towards those they have brought into being, the laws of all civilised peoples have believed it necessary to establish conventions for the recognition of those bound by these obligations. We have established these conventions.
The publicity, the solemnity, of marriages may alone prevent those vague and illicit unions that are so unfavourable to the propagation of the species.
Civil laws must interpose their authority between spouses, between fathers and children; they must regulate the government of the family. We have sought, in nature, the blueprint for this government. Marital authority is based on the need to give, in a society of two individuals, the preponderant voice to one of the members, and on the pre-eminence of the sex to which this advantage is given. The authority of fathers is justified by their affection, by their experience, and by the maturity of their reason, and by the weakness of that of their children. This authority is a kind of public office to which it is important, particularly in free States, to give some scope. Yes, there is a need for fathers to be real public officials wherever the maintenance of freedom requires that public officials be no more than fathers.
When one knows the essence, the traits and the purpose of marriage, one readily discovers the impediments that, on their own strength, render someone incapable of contracting it, and of these impediments, those derived from positive law and those determined by nature itself. Among those determined by nature must be included insufficient years. In general, marriage is permitted of anyone who can fulfil the vow of its institution. There is no natural exception to this rule of natural law other than for persons within certain degrees of kinship. Marriage must be forbidden between all direct ascendants and descendants: we need not give the reasons why; they have occurred to all lawmakers. Marriage must also be forbidden between brothers and sisters, because the family is the sanctuary of morals, and morals would be threatened by all the preliminaries of love, desire and seduction that precede and prepare the way for marriage. When the prohibition is extended to more distant relations, it can only be so by political design.
Lack of freedom, abduction, mistake as to person are likewise natural impediments, because they exclude the notion of true consent. The intercession of fathers, of guardians, is but one condition prescribed by positive law. The absence of this intercession is merely a civil nullity. The lawmaker can, in the interest of public order, establish such impediments as he deems appropriate; but these impediments are then no more than pure positive law.
In weighing the impediments attached to marriage, the conventions and conditions required for its validity, we have indicated those cases where it is more expedient to rectify the wrong than to punish it, and have distinguished those instances where the nullities may be overshadowed by the conduct of the parties or by the mere passage of time, from those where the abuse always calls for the condemnation of laws.
The outcome of what we have just said is that marriage is a perpetual contract by destination. Recent laws permit divorce. Should these laws be preserved?
In permitting divorce, it is not at all the lawmaker's intent to go against the religious dogma of indissolubility, or to decide a matter of conscience. He merely assumes that the most heated passions, those that have caused, and still cause, so much devastation in the world, can destroy the harmony that must prevail between two spouses. He assumes that the excesses can be serious enough to render their shared life intolerable for these spouses. So, out of concern for their tranquillity, their security and their present happiness, which are the only things with which he is charged, he refrains from forcing them to remain inextricably bound to one another despite all the motives that divide them. Without offending against the views of religion, which continues in this and so many other matters to govern men in the nature of merit and freedom, the lawmaker employs his power only to prevent the disruptions most harmful to society, and to set limits on passions and abuses whose source one dare not hope to extinguish completely. Considered thus, the question of divorce becomes a purely civil question whose answer must be sought in the disadvantages or advantages that may result from divorce itself, seen from a political perspective.
Throughout time it has been understood that it is as dangerous as it is inhumane to bind together, with no way out, two spouses who weigh each other down. Hence, one finds, among those very peoples for whom the indissolubility of marriage is consecrated by civil laws, the use of separations, which loosen the bond of marriage, without breaking it.
The advantages and disadvantages of divorce have been variously presented by the different authors who have written on this subject.
It has been said, in favour of divorce, that marriage is deprived of all its sweetness by declaring it indissoluble; that in wanting to tie the conjugal knot too tightly, it is weakened; that domestic sorrows are dreadful when there is nothing more consoling to look to than their eternity; that the life of two spouses who are at odds with each other, and who are inextricably joined, is lost for posterity; that morals are compromised by bad marriages that cannot be broken; that a husband, disgusted by an eternal wife, indulges in dealings which, without fulfilling the purpose of marriage, represent, at best, its pleasures; that the suffering of children need not be any greater owing to divorce than owing to the discord that wracks an unhappy marriage; finally, that absolute indissolubility is as injurious to the true welfare of families as to the common welfare of the State.
It is answered back that it is dangerous to abandon the heart to its whims and its inconstancy; that one resigns oneself to tolerating domestic unpleasantries, and even works to prevent them, when one knows that there is no opportunity of divorce; that, where this option is allowed, there is no longer marital authority, paternal authority, domestic government; that separation suffices to alleviate the troubles of shared life; that divorce holds little advantage for women and children; that it threatens morals by giving passions too free a rein; that there is nothing holy and religious about men if the marriage bond is not inviolable; that the regular propagation of the human race is much better assured by the trust of two faithful spouses, than by unions that passing fancies may render variable and uncertain; finally, that the continuance and good order of society as a whole depends essentially on the stability of families, which are the first among all societies, the germ and the foundation of empires.
Such have been the considerations put forward for and against divorce. As a result, the usefulness of divorce is founded on the danger and violence of passions, and only an extreme moderation of desires, the practice of the most austere virtues, could remove from absolute indissolubility the disadvantages believed to be inseparable from it.
What is the lawmaker to do? His laws must never be more perfect than the men for whom they are destined. He must consult the morals, the character, the political and religious situation of the nation he represents.
Is there a dominant religion? What are the dogmas of that religion? Or rather, are all faiths allowed without distinction? Is the society nascent or ancient? What is the form of government? All of these questions affect, more than one might think, the question of divorce.
Let us not forget that the question is not whether divorce is intrinsically good, but whether it is appropriate for laws to intervene in something that is naturally so free, and in which the heart must have an equal part.
In a nascent society, marriage is scarcely considered other than in connection with propagation of the species, because a new people needs to grow and multiply.
It is not at all impractical for simple and coarse men to have many children; they would fear not having enough. One sees, with no hint of scandal, a woman pass successively into the arms of several husbands. One permits the exposing of feeble or ill-formed children. One denies the possibility of marriage to persons who, because of their age, are no longer suited to nature's designs. Marriage is, then, governed by a few political laws, rather than by civil laws and natural laws. The former custom that permitted a Roman citizen to lend his wife to another so she would bear finer children, was a political law.
When a nation is formed, there are enough people. The concern for propagation diminishes; the concern is more for the pleasures and dignity of marriage than for its purpose. An attempt is made to establish a constant order in families, and to give love an influence that is so well-defined that this order can never be disturbed.
So the possibility of divorce is banned or allowed, depending on the morals and received notions in each country; on the degree of freedom it is believed wives should be allowed; on the degree to which husbands rule as monarchs; on the interest there is in strengthening domestic government or holding it back, in favouring the equality of fortunes or preventing too great a division of them.
In our modern times, it is primarily religious doctrines that have influenced the divorce laws.
Divorce was permitted among Romans. The Christian religion became established in the empire. Divorce existed until the 9th century; but it gave way to the new principles proclaimed about the nature of marriage.
- Date modified: