3. What are the important differences between the code and common law systems? 1. Why did Napoleon believe that a new code of law was necessary for France? This article argues that Burgerlijk Wetboek (BW) of 1838, the predecessor of the current Dutch Civil Code, was not a copy of the Napoleonic Code, but an improved version of it. It provides the history of the development of law in the Netherlands to highlight the context in which BW was written. She claims that the Netherlands followed the structure of the Napoleonic Code in building BW, but removed some of its laws and improved existing laws. The article also states that during this period, the Netherlands created new laws to be applied in the context of the biological weapons case. With 36 laws and 2,281 articles arranged in 3 parts devoted to persons, property and property, written in a clear and concise style to avoid any ambiguity, the Civil Code was « a corpus of laws intended to regulate and fix social, family and commercial relations between men of the same city » (Portalis: Overview). More traditional than some of his more revolutionary colleagues, Bonaparte left his mark on the Civil Code, reintroducing the superiority of husband and father in the family context. Women passed from the control of their fathers to the control of their husbands and could not perform any legal acts or administer their property without their consent – they were not even allowed to freely exercise the profession of their choice. It is only after the age of 25 that children are no longer under the authority of their father and can marry without asking his permission.
Fathers were also allowed to send their children to places of improvement if they found the child`s behaviour unacceptable. After all, nationality was only passed down by the father – the only people who could be French were those whose father was French. There were other measures that retained more of their revolutionary inspiration, such as divorce (which was only allowed by mutual consent) and equality of children in terms of inheritance. Adoption, which is permitted only for persons who have reached the age of responsibility, is also regulated by the Civil Code. The development of the Napoleonic Code was a fundamental change in the nature of the civil justice system, making laws clearer and more accessible. It also replaced the earlier conflict between the royal legislature and, particularly in the last years before the Revolution, the protests of the judges representing the views and privileges of the social classes to which they belonged. Such a conflict led revolutionaries to judge judges and the judicial system negatively. This is reflected in the provision of the Napoleonic Code, which prohibits judges from ruling on a case by introducing a general rule, since the creation of general rules is an exercise of legislative power and not a judicial one. Theoretically, therefore, there is no case law in France. However, the courts have yet to fill gaps in laws and regulations and cannot refuse to do so. In addition, the Code and the law required judicial interpretation. Thus, a huge legally created law (jurisprudence) emerged.
In French law, there is no rule of stare decisis (binding precedent), but the decisions of important courts are more or less equivalent to case law. The Napoleonic Code was not the first code to be introduced in a European country with a civil law system. It was preceded by the Codex Maximilianeus bavaricus civilis (Bavaria, 1756), the General Land Law (Prussia, 1794) and the Code of Law of Western Galicia (Galicia, then part of Austria, 1797). However, it was the first modern legal code adopted with a pan-European scope, greatly influencing the law of many countries formed during and after the Napoleonic Wars. The Napoleonic Code had a great influence on developing countries outside Europe, particularly in the Middle East, which attempted to modernize through legal reforms. « Is it not absurd and terrible that what is true in one village is false in another? What kind of barbarism do citizens have to live under different laws? When you travel to this realm, you change the legal system as often as you change horses. 1 This article examines the historical and contemporary impact of the Napoleonic Code on Latin American countries. It deals with the development of private law and the influence of the Napoleonic Code on the construction of these laws in countries such as Argentina and Chile.
Further, the article shows the reasons for the diminishing impact of the Napoleonic Code in Latin America today. The weakening of European influence and the globalization of economic law were two of the main reasons for the diminishing impact of the Napoleonic Code on Latin America. However, this article asserts that the Napoleonic Code will continue to reign in Latin America because of the logic behind its structure. Pierre Legrand asserted that the Napoleonic Code is the grammar of laws. Although the sentences change, the grammar rules remain the same. The content of laws will always change; Nevertheless, the style and mentality in which they were written will always be the same. During the overhaul of the entire legal system, the new Code of Civil Procedure was adopted in 1806. A year later, the Commission recommended that no further code be issued once its current codification projects were completed; Another reason was the government`s delay in publishing the reforms that the Commission had completed. [19] The government responded encouragingly in March 2013, but the Commission complains that this has not been implemented; In particular, that the government has abandoned its civil service bill. [20] This is reflected in the provision of the Napoleonic Code, which prohibits judges from deciding a case by introducing a general rule (Article 5), since the creation of general rules is an exercise of legislative and not judicial power. Theoretically, therefore, there is no case law in France. However, the courts have yet to fill gaps in laws and regulations and cannot refuse to do so (Article 4).
In addition, the Code and the law required judicial interpretation. The result has been abundant case law. There is no rule of stare decisis. However, the code speaks of equality before the law, but does not provide for equal status for women. This is a limited right to vote, which reduces women to the status of minors under the authority of fathers and husbands. This article analyzes the principles of the Napoleonic Code and highlights the reasons for the contradictory approach of jurists with the Codex.