Copyright (c) 1995 North Carolina Journal of International Law & Commercial Regulation Inc.
North Carolina Journal of International Law & Commercial Regulation
ARTICLE: Codes as Straight-Jackets, Safeguards, and Alibis: The Experience of the French Civil Code
20 N.C.J. Int'l L. & Com. Reg. 273
Olivier Moreteau *
I. Introduction: The Civil Code as a Straight-Jacket?
Since 1789, which marked the year of the French Revolution, France has known no fewer than thirteen constitutions. 1 This fact is scarcely evidence of political stability, although it is fair to say that the Constitution of 1958, of the Fifth Republic, has remained in force for over thirty-five years. On the other hand, the Civil Code (Code), which came into force in 1804, has remained substantially unchanged throughout this entire period. It has been amended many times, especially since the last war, to take into account the equality of women and to modernize the law of divorce. However, many of its nearly 2,300 articles remain intact. Small wonder that it is sometimes referred to as "the Civil Constitution" 2 - legal stability exists where political stability has been lacking.
Lawyers in common law countries tend to consider the codified civil law systems as restrictive and mechanical. The Code is seen as a constraint, with judges obligated to make a mechanical application of its provisions whenever a case arises which corresponds to the situation described in the Code. Under such a conception, the court is seen as "a sort of judicial slot machine." 3
There is no doubt that this presumption is wrong for most codes in civil law countries. Certainly, it is not correct as far as the French Civil Code is concerned, as that Code does not contain many detailed provisions. True, a certain number of rather precise articles ...
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