France's Council of State
Because of Napoleon's great military activity during his 16 year rule, one forgets the major role he played in organizing a new style of political administration in Europe. Whether functioning as First Consul or Emperor, in Paris or on campaign, Napoleon followed the creation and supervised the functioning of institutions some of which still form the body of the French state, for example, the Courts of Accounts (Cours des comptes - 1807 ) or the General Inspection of the Finances (l'Inspection générale des finances). Perhaps the most remarkable of his governmental creations is the Council of State, which celebrated its bicentenary in 1999.
a) The Royal Council
Historically, France's royal leaders were advised by ' a council'. When requested, The Council provided advice, sometimes administered justice through legal action, and often dictated the laws.
The Revolutionary Ideal
With the Revolution came the fundamental concept of a separation of powers; in this case, the seperation of the law from the states legislation and administration. However, a great mistrust of the judges, who could paralyze the functioning of the state, led the Revolutionaries to prohibit legal proceedings against state officials, within the framework of their function.
c) The Inheritance
Romano-Germanic tradition differs from the Common Law with regard to the prevalence of written law. Judges can not legislate but only apply the written law as a common standard for all citizens. Under the Revolution, this practice tended in the direction of democracy and equality. One continuing problem was the length of time that laws were studied and debated prior to their enactment.
The Council of State
a) Creation - The Constitution of the Year VIII
As First Consul, Napoléon Bonaparte tried to synthesize the traditions of the Ancient Régime and the recent actions of the Revolution. Article 52 of the Constitution of the 22 Frimaire, Year VIII (December 13, 1799) established the Council of State. The council, under this document, had double responsiblities:
Legislative: to participate in the drafting of the most important Acts
b) The Structure
The Council of State was initially divided into five Sections:
Members of the Council of State
Councillors of the State
The first members of the Council of State, after its creation in 1799, were called 'Conseillés d'Etat' (Councillors of the State).
In 1803, the 'auditors' were created with the responsibility to attend the works of the Sections and primarily to charge of verify the administrations of prefectures and the occupied countries. Among this group of relatively young people, Napoleon would find many diligent, righteous, and intelligent civil servants.
Maistres of Requests
With servants of the State not being subjected to other legal restrictions, the Constitution of the Year VIII foresaw that the Council of State would ajudicate disputes between the administered and the Administration. For this reason, in 1806 the posts of Maistres of the Requests ( Maistres de requêtes) were created to regulate such disputes. It seems rather extraordinary that the Council of State could simultaneously propose laws and also sit in judgement of them. Thus, Napoleon, in selecting the original members, was careful to avoid controversy.
The three posts defined above clearly delineate the makeup of the Council. Its mission is to oversee the drafting of bills of legislation, to write and approve regulations of public administration, and to resolve disputes between the branches and levels of the Administration.
To Draft LegislationThe Council proposed to the Emperor new laws and decrees. Napoleon was not obliged to apply them, rather he reserved the right of approval.
Council of State Products
The most visible and lasting products of the Council of State are, of course, the 5 great Napoleonic codes. These are (with their implementation dates in parentheses): the Civil Code (1804), Penal Code (1810), Code of Civil Procedure (1806), Code of Criminal Procedure (1808), Commercial Code (1807). There are also many other products, much to numerous to include here.
If credit for the paternity of the Council is given to Bonaparte, the real driving force in the establishment of the Council was Cambacérès. Coming from a jurists' family in Montpelier, he was an experienced and competent jurist who took responsibility for the daily progress of the Council's development. Once established, he presided over the Council in the absence of Napoleon.
The Council of State Today
The present role of the Council of State evolved naturally over the years. Today it is a completely independent body.
Countries other than France, including Italy, Germany, Belgium, Portugal, Lebanon, Thailand, Tunisia, and numerous countries of Latin America have adopted the Council of State system and organization. Even some Anglo-Saxon countries have adopted all or portions of it to manage conflicts between private individuals and companys against the civil administration.
Napoleon's genius was not in attempting to specify all the details of the establishment of the Council of State, but to give it the main line of his vision and personally overseen its progress. He also put the proper persons in the proper places as the effort moved forward.
Further information on the The Council of State is available on the Web: The official site is: The Council of State An expanded description and accompanying data base, can be found at Foundation Napoleon Both of these sites contributed to the bulk of the information in this report.
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