The French and Austrian Civil Codes: A Comparison

The French and Austrian Civil Codes: A Comparison

     In 1804, the French emperor Napoleon initiated a sweeping overhaul of the French legal system.  Up until that time, different provinces of France used different systems of law.  The north of France, for example, followed laws that dated back to the Middle Ages, while the south followed ancient Roman law.  The church governed many aspects of French legal life, as well, including the institution of marriage.  While the French revolution of 1789 had established the idea that there should be one French system of law and that everyone should be equal before it, it was not until 15 years later that Napoleon succeeded in instituting this idea into the fabric of French society with his enduring Civil Code.

     Napoleon’s civil code is still the basis of French law today.  While many of its aspects have faded away through the mists of time due to being applicable only to the time period in which they were created, many other parts of the civil code endure and are relied upon to this day.  Any French citizen can pick up a copy of the civil code in their local bookstore or download it from the internet; it is even available in CD-ROM form.  The civil code of Napoleon, also known as the French Civil Code, firmly establishes the notion of one French law that applies to everybody.

     Napoleon’s civil code was indeed revolutionary, though not always progressive.  It did away with many of the freedoms previously established by the French revolution.  For example, women in France had been given pretty much equal legal footing with men by the French revolution.  Napoleon’s civil code did away with these newfound rights and reduced women to the legal status of children under the new French law.  Some scholars believe that this was because Napoleon wanted to give himself legal justification for divorcing or putting aside his wife Josephine, because they could not have children together.1

     The civil code did away with feudalism once and for all.  It also eliminated the aristocratic class and all their privileges in France; this was an important step for the French people, as anger against the excesses of the nobility while the common people starved was one of the main driving factors of the French revolution.  The civil code also established separation of church and state in France; the code itself does not mention God, but it mandates religious tolerance under the law.  This was also a revolutionary idea for a nation that for centuries had been dominated by the Catholic religion in both legal and private life.

1FARBER, Bernard. Family and Kinship in Modern Society. Illinois, Scott, Forsman, 1973.

     In family life, husbands were awarded much power under the civil code.  They were indisputably the heads of the households, legally speaking.  The circumstances under which a divorce would be granted were severely restricted, and women could no longer use divorce as simply a means to secure a better marriage partner for themselves; there had to be an overwhelming reason for a divorce to be granted.2  Further, inheritance rights were changed by the civil code so that property was henceforth to be equally distributed among all heirs.  This was a radical departure from the old system in which the eldest son was normally given the majority of the property in an estate, with the younger children left to either make good marriages for themselves (particularly the daughters) or fend for themselves in life however the could.3

     The French civil code also instituted some new and progressive legal reforms pertaining to trials and the rights of accused criminals.  Under the civil code, defendants were legally innocent until proven guilty in a court of law.  While the United States had previously established this legal precedent 25 years earlier in their Constitution, this was still a revolutionary concept for

2FARBER, Bernard. Family and Kinship in Modern Society. Illinois, Scott, Forsman, 1973.

3MATTEI, Ugo. Basic Principles of Property Law: A Comparative Legal and Economic Introduction. New York, Greenwood Press, 2000.

Europe.  Napoleon was particularly concerned that the average poor citizen with no influential connections to assist him in case of legal trouble would continue….as was often the case…..to be bullied and falsely convicted and imprisoned by a corrupt judicial system.  Napoleon was also concerned about excessive periods of remand.  Remand happened when a person was accused of a crime and was then handed over, or remanded, to the custody of authorities for however long it took to get a trial started and for the duration of that trial.  Particularly if a person was ultimately found to be innocent, a long period of remand seemed especially unfair.  This is why the French civil code abolished excessive periods of remand for all but people accused of the most heinous of crimes, such as murder and treason.

     The French civil code also mandated that every defendant was entitled to an attorney.  Again, this was very progressive thinking on Napoleon’s part, as most countries in Europe did not allow accused felons to have an attorney at all; this did not begin to change outside of France until the mid-nineteenth century.  Napoleon’s civil code further mandated that if a defendant was too poor to afford an attorney on his or her own, then the court would appoint an attorney for them.  If the court did not appoint an attorney for a defendant, then whatever verdict the court reached in the defendant’s case would be null and void.  This was also legal precedent in the United States at the time, but groundbreaking legal reforms for a European country in 1804.  The idea that the court would appoint someone with an attorney free of charge was scarcely believable, so slanted against the rights of the accused were European courts of Napoleon’s era.

     The civil code established juries for every sort of trial, no matter what the crime the defendant was accused of having committed.  Most European courts of the time did not allow juries for trials for particularly serious crimes.  Napoleon did, however, reject the notion of the grand jury for indictment purposes, and established that the criminal courts of appeals would handle this function.  If a particular defendant had such clout that he or she could intimidate a jury into acquitting him or her, then a special court could be established for trying that particular case.  Finally, Napoleon’s civil code established that both criminal and civil cases would be tried by the same courts.

     Napoleon’s civil code was not used just in France.  Napoleon had succeeded in conquering many different countries at the height of his power, and the Napoleonic civil code was imported to those countries.  The Netherlands, Belgium, and other countries continued to use the civil code of Napoleon for some time after Napoleon’s reign had ended; the Netherlands still uses part of it to this day.  Even in countries that eventually adopted their own unique systems of law, elements of the Napoleonic civil code inevitably crept into their newly formed laws, meaning that traces of it can be seen throughout Europe even now.4

     Other European countries have civil codes, and many of these civil codes are not derived from Napoleon’s civil code; England has no civil code at all, instead relying on an unwritten system of common law.  Austria is one of these European nations with a civil code all its own.  Austria’s civil code was established in 1811 after more than forty years of preparation and wrangling behind the scenes to get it approved.  Like the Napoleonic code, the Austrian civil code establishes one system of law under which all Austrian citizens are considered equals.

     Of course, not everyone in Austria is considered an Austrian citizen under the Austrian civil code.  Unlike most other countries in Europe, including France, Austria does not recognize every baby born on Austrian soil as an Austrian citizen.  If the baby’s parents are not Austrian citizens, then Austria will not consider the baby to be a citizen.  If the baby is not an Austrian citizen, then he or she can not become a recipient of any welfare or other

4WOOLF, Stuart. Napoleon’s Integration of Europe. New Jersey, Routledge, 1991.

assistance from the Austrian state.  While this practice is currently being scrutinized and criticized within Austria, it is still the national law and is part of the Austrian civil code.  Napoleon’s civil code was more all-inclusive regarding French citizenship.

     Austria’s civil code has a lot of similarities to Napoleon’s civil code when it comes to the rights of the accused in criminal cases and in how courts are to be set up and operated.  Some provisions of Austria’s civil code regarding these matters are as follows:

Ÿ  The public should be involved in criminal proceedings as much as possible, and only excluded from these proceedings in extreme circumstances.  Public participation in criminal trials means that the public should be allowed to watch these trials and should participate in these trials as jurors.

Ÿ  All criminal trials are to be carried out in front of a judge.

Ÿ  The court must do everything it is legally able to do in order to determine the truth in a case.  This means not limiting its examinations to simply the prosecution and the defense.

Ÿ  All criminal defendants are innocent until proven guilty.  Further, if any doubt at all exists about a person’s guilt, no matter how small, then that person must be acquitted.5

            Of course, there are some important differences in the French and Austrian civil codes regarding the rights of the accused and in how trials are to be conducted.  As has been seen, in the French civil code, Napoleon was very concerned about the rights of the accused being preserved and of people accused of crimes not being abused by a corrupt judicial system.  Therefore, Napoleon was careful to not give too much power to the prosecutors in the courts of France, as all power had previously rested with them and it had been misused.  In Austria’s civil code, though, it is laid entirely at the feet of the prosecutor to initiate and conduct criminal trials.  No trial comes into a court before a judge in Austria without it first having been initiated by a prosecutor.  Further, it is the job of a prosecutor in Austria to research and seek out cases to prosecute.  This type of power would never have been given to a prosecutor under Napoleon’s civil code.6

     Austria’s civil code takes steps to eliminate the dangers of lengthy remands, just like France’s civil code.  However, Austria does not have as firm a protection against this as does France.  Austria will not allow a person to be

5HONORE, A.M., et al. An Introduction to Roman Law. Oxford, Oxford University Press, 1996.

6SCHLESINGER, Rudolf P. Federalism in Central and Eastern Europe. Oxford, Oxford University Press, 1945.

in remand for more than forty-eight hours without charges being formally made.  In France, even if charges are formally made against a person, this does not necessarily mean that they are able to be held in remand at that point.  Austria does make a nice distinction in its civil code that no one is to be subject to remand based on their involvement in a public scandal…..something that was actually of great concern in the nineteenth century!

     Unlike the French civil code, the Austrian civil code does not specify particular roles to be played by husbands and wives in the institute of marriage.  Napoleon instituted these specifications due to his own personal views and personal circumstances, and these mandates have naturally faded out of the French civil code since the code was written, due to their inapplicability to changing modern standards and opinions.  Even at the time they were written, Napoleon’s thoughts about the roles of men and women in his civil code were falling outside of the European norm.  Austria’s civil code does, however, hold the sanctity of someone’s private home to be inviolable by the government.7  If the government wishes to search a person’s home or take a person’s property, it must have a strong, overriding reason for doing so that can be proven beyond a shadow of a doubt

7MATTEI, Ugo. Basic Principles of Property Law: A Comparative Legal and Economic Introduction. New York, Greenwood Press,  2000.

in court and must produce a warrant; that warrant is good only for twenty-four hours.  It takes extreme circumstances under the Austrian civil code for such a warrant to be granted.8

     Also like in the French civil code, freedom of conscience is established and preserved in the Austrian civil code.  In other words, in Austria, people are free to believe as they wish.  They may not be forced to observe any particular public religious practice.  Religion and the state are kept separate from one another in the Austrian civil code.  No one may be discriminated against or denied public office or the right to participate in the civil affairs of public life based on his or her religious views or affiliation.  Churches in Austria are free to set themselves up as they like and govern themselves according to their own desires, but are also subject to the civil laws of the land, just like any other establishment.9  After centuries of iron-fisted religious rule in Austria, the separation of church and state was an important one to many European countries, France and Austria included.  While the civil codes of both countries recognized the importance of religion in the lives of their citizens, the codes also

8HONORE, A.M., et al. An Introduction to Roman Law. Oxford, Oxford University Press, 1996.

9ZWEIGERT, K. & KOTZ, H. An Introduction to Comparative Law. Oxford, Oxford University Press, 1998.

recognized that not everyone believes the same way, and that individual beliefs must be respected and have no bearing on

a person’s civil life.

     The civil codes of France and Austria established some fairly modern precepts of law.  In fact, both could be considered just a little bit ahead of their times.  While the later half of the nineteenth century saw a dramatic rise in progressive political ideas across Europe, France and Austria were at least a few decades ahead of the pack in establishing personal freedoms into the legal code of their countries.  Though different in some superficial ways, the civil codes of France and Austria are alike in many more important ways.  By looking at the two civil codes, it can be seen that the tide of thinking was beginning to turn in Europe.  France and Austria were among those few countries leading the way into a new era of progressive politics based on the rights of the individual.

Endnotes

1. FARBER, Bernard. Family and Kinship in Modern Society. Illinois,    Scott, Forsman, 1973.

2. Ibid.

3.  MATTEI, Ugo. Basic Principles of Property Law: A Comparative Legal and Economic Introduction. New York, Greenwood Press, 2000.

4. WOOLF, Stuart. Napoleon’s Integration of Europe. New Jersey, Routledge, 1991.

5. HONORE, A.M., et al. An Introduction to Roman Law. Oxford, Oxford University Press, 1996.

6. SCHLESINGER, Rudolf P. Federalism in Central and Eastern Europe. Oxford, Oxford University Press, 1945.

7. Ibid.

8. Ibid.

9. ZWEIGERT, K. & KOTZ, H. An Introduction to Comparative Law. Oxford, Oxford University Press, 1998.

Bibliography

FARBER, Bernard. Family and Kinship in Modern Society. Illinois, Scott, Forsman, 1973.

HONORE, A.M., et al. An Introduction to Roman Law. Oxford, Oxford University Press, 1996.

ZWEIGERT, K. & KOTZ, H. An Introduction to Comparative Law. Oxford, Oxford University Press, 1998.

MATTEI, Ugo. Basic Principles of Property Law: A Comparative Legal and Economic Introduction. New York, Greenwood Press,  2000.

SCHLESINGER, Rudolf P. Federalism in Central and Eastern Europe. Oxford, Oxford University Press, 1945.

WOOLF, Stuart. Napoleon’s Integration of Europe. New Jersey, Routledge, 1991.