1. Comparative Law Spring 2002 Professor Susanna Fischer CLASS 8 FRENCH LEGAL SYSTEM: HISTORICAL BACKGROUND I

2. WRAP-UP: GERMAN HISTORICAL BACKGROUND Last time we studied the development of modern German law throughout the 18 th and 19 th centuries Roman law strongly influenced both the 18 th century codifications by eg. Prussia and the late 19 th century codifications that we still have today (like the BGB). But the late 19 th century codifications were influenced by a different approach to Roman law, that of the historical school, who went back to Justinian’s Codex as a primary source

3. GERMANIC SETTLEMENT OF GAUL In the 3rd and 4 th centuries A.D., Germanic tribes start to move into northeastern Gaul By the fall of the Roman Empire (476), much of Roman Gaul was controlled by Germanic tribes such as the Salic Franks, the Burgundians, and the Visigoths

4. The Dark Ages (repeat slide) In the 5 th century, as Rome collapsed, invaded and plundered by Germanic tribes, Europe entered the Dark Ages, from which it would not emerge until at least the 10 th century. Widespread poverty, illiteracy, intellectual stagnation

5. Tribal Law Each tribal group applied its own customary laws. For example, the Salic Frank kingdom was subject to Salic Frank customary laws, the Burgundian kingdom to Burgundian laws etc.. As we have already learned, the Salic Frank king Clovis (482-511) codified the Salic law (lex Salica). The Visigothic customary law was also codified in 580 by Euric, and the Burgundian customary law (lex barbara Burgundionum) by Gundobad (474-516)

6. Salic-Frank period: A.D. 500 to A.D. 888 Some centralization of the king’s authority during this period Clovis (482-511) established Merovingian Empire and converted to Christianity. But his success was ephemeral; the empire split into 3 parts

7. No Legislation in the Modern Sense Clovis did not promulgate the Lex Salica as royal legislation or ordinance. It had to be approved by assemblies of Salic Frank freeman.

8. Salic Frank period: A.D. 500-888 As well as the customary law, there were also codifications of the Roman law applying to Gallo-Roman subjects ot the Burgundians (lex Romana Burgundionum) and Visigoths (lex Romana Visigothorum (506) Influence of Roman law declined more quickly in the north of Gaul than in the south-east

9. Salic-Frank period: A.D. 500 to A.D. 888 Like Clovis (482-511), Karl the Great (Charlemagne) (768- 814) was another strong Frankish king, establishing the Carolingian empire. The Frankish empire lasted only another century after Charlemagne.

10. Charlemagne’s Frankish Empire at its Height (A.D. 800)

11. What was the legal system like during the Salic-Frank period?

12. What was the legal system like during the Salic-Frank period? (repeat) For the first time in the history of Germanic law, legal rules were recorded by legislators e.g. Volksrechte such as Lex Salica ca. 500 A.D. (assembled by Clovis), Kapitularen, Konzilbeschlüsse, Formularsammlung, Royal and private deeds Remember that even though there was one empire, there were many legal systems. A Saxon could not be subject to Frankish law. To enable his margraves to rule conquered peoples, Charlemagne had laws written down. He himself was illiterate, as were most of his subjects. Much customary law was never written down. Kapitularen were oral too – text was not the law.

13. Frankish Courts Highest court: local assembly presided over by royal appointee, the comte (German equivalent called Markgrafen or margraves), who sat with 7 nobles (scabini) appointed by the comte, who had were the fact-finders and with the local freemen. Comte went on circuit around the country Gradually, role of freemen decreased, meeting only 3 times a year to deal with major cases and discuss major political affairs.

14. Carolingian Reforms Under Charlemagne, an itinerant royal judge was introduced (Missi dominici) who acted as a supervisory and appellate jurisdiction the courts of the comtes and also heard cases involving the king’s interests.

15. Frankish Trials – Comtes’ courts (Gaugericht) No public authority to issue writs; plaintiff had to force defendant to come to court. Proceedings were oral Accusation which must be denied under oath Oaths had to be supported by oath- helpers If no oath-helpers, must go to trial if folk decided it was necessary Commonest method of trial were ordeals (e.g. hot water, hot iron, cold water) Trial by battle also common

16. Royal courts (Missi dominici (Königsgericht)) Not bound by the customary law, so procedure was different. Written evidence was preferred. Procedure was inquisitorial, not party driven. Means of proof were more rational, including questioning of fact witnesses.

17. The Middle Ages: The Start of the Feudal Age In the late 9 th century, the Frankish empire was drifting apart This period has been called the “darkest hour of the Dark Ages” Disorder begat feudalism (armored knights, vassalage, fief, stone castles, chivalry, tensions, immunity, treachery) How did this happen – next slide will explain...

18. Division of Charlemagne’s Empire Charlemagne had 1 son, Louis the Pious Louis the Pious had 3 sons and he divided the Frankish Empire into 3 parts for them Charles got the western part (Franks) Louis got Germany Lothar got Italy/Benelux/Switzerland After their fathers’ death, all three went to war. In 849, at Verdun, there was a final settlement, pretty much as Louis the Pious had originally divided things up.

19. Collapse of the Salic Frank empire: 849-888 Further splits of the Empire Incompetent Kings (Charles the Fat, Louis the Simple) Magyar & Viking invasions

20. Capetian Dynasty In 987 Capetians succeeded the Capetians as rulers of France First Capetian, Hugh Capet, is pictured) Early Capetians had no effective authority over entire country Power was limited to Paris and parts of Loire Valley

21. Feudal France: 10 th -13 th centuries Disorder of 10 th century begat feudalism (armored knights, lords (seigneur), vassalage, oath of homage, fief, stone castles, chivalry, tensions, immunity, treachery). King was sovereign feudal lord but did not have royal authority throughout France Justice dispensed by feudal courts. No royal justice – just royal feudal court. Civil and criminal procedure like mallus, e.g. trial by ordeal

22. 1250-1300: Increasing Power of King King gradually needs less and less support from Conseil of nobles and bishops to promulgate legislation of general effect ordonnancees Buttressed by Roman law theories. Roman law had been revived starting in late 12 th century in Bologna and this revival spread to France (as well as elsewhere in Europe) in the 13 th century.

23. 1250-1300: Increasing Power of Royal Courts: The Parlements Cour en Parlement (later just Parlement) is created in Paris. Split of king’s Conseil Uses more rational means of proof than ordeal or battle. Professional justices Introduces inquisitorial, written procedure based on Roman law (revival in 13 th century) All French trial lawyers are required to study Roman and Canon law at university Parlement also has legislative function – drafting/registration of ordonnances

24. Dynastic Struggles for the Throne of France 1328: Last Capetian dies. Philippe of Valois claims the thronel 1337-43 – Hundred Years War between France and England. Starts when Plantagenet Edward III claims rights to French throne. 1443 – English lose French possessions except Calais which they hold onto until 1565

25. Regional Parlements:15 th -18 th centuries Regional Parlements are created (e.g. Toulouse 1443, Dijon 1477). By 1789, there are 17. 3 levels of royal court. At top, Parlement. Lower royal courts, cours de baillage created in 13 th century. In 14 th century, sièges présidaux are created (intermediate appellate courts) There are still feudal courts but they are eclipsed by these royal courts from 13 th century on

26. The Ancien Regime: Parlements and Customary Law Despite 2 royal orders in the 15 th century to write down custom (and in the process systematize it) France did not succeed n having a unified body of legal rules before the revolution. The Parlements did not apply one system of royal law, but different customary laws (60 regional customs, 300 local customs) Voltaire said a man could not ride from one province to another without having to change both his horse and his law

27. The North-South Divide From the 13 th century: The South (Midi): Pays de droit écrit The North: Pays de coutume What’s the difference?

28. Absolute Monarchy: 17 th and 18 th Centuries Royal legislation becomes main source of law Parlement has advisory/registration role in legislation though King can override it. Parlement frequently opposes king’s legislation esp. in tax matters. Some attempt to use King’s law to unify law: 17 th century reform of procedure and commercial law under Jean Baptiste Colbert (Finance Secretary to Louis XIV): forerunner of Napoleon’s codification. However, customary laws still remained until the Revolution.

29. 17 th & 18 th Century Treatise Writers: Search for General Principles In 17 th and 18 th centuries, treatise writers such as Jean Domat (1627-1697) (Les Loix Civiles dans leur Ordre Naturel) and Robert Pothier (1695-1772) (15 treatises on private law) seek to extract general principles from customary law. Would greatly influenced drafters of Code Civil in early 19 th century. But to codify the law would require the power of Parlements to be broken.

30. The French Revolution: 1789-99 End of feudal privileges and abolition of hereditary nobility. All citizens equal in status and having certain basic rights – Déclaration des Drois de L’Homme et du Citoyen of 1789 Separation of church and state Abolition of regional Parlements

31. Napoleon Bonaparte and the Codification of French Law Napoleon came to power in 1799 Centralized and consolidated government and codified the law in a Civil Code of 1804 (tort, contract, family, property law) Also created the Conseil d’Etat

32. Subsequent Napoleonic Codes Civil Procedure (1806) Commercial Law (1807) Criminal Law (1810)

33. Modern French History: 15 Constitutions! Restoration of the Bourbon monarchy: 1815- 1848 Second Republic: 1848-1852 Napoleon III: 1852-1870 Third Republic: 1875-1940 Second World War/Vichy: 1940-1944 Provisional Government: 1944-1946 Fourth Republic: 1946-1958 (21 governments!) Fifth Republic: 1958-present