Introduction

History

The Revolutionary Ideal

Council of State

Members

Missions

Products

Cambacérès

Today

France's Council of State

By Dominique Contant

Introduction

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.

History

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

Administrative: to resolve disputes within the Administration.

b) The Structure

The Council of State was initially divided into five Sections:

Finances

Civil and Criminal Legislation

War

Marine

Interior

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).

The two primary categories of service were:

Councillors in common service who worked within the main Council.

Members in extraordinary service who worked with the minor and outside Administrations.

Napoleon wanted representatives of countries under French administration to also participate in the Council. Thus, one saw Italian, Rhenish, Dutch and German Councillors.

Auditors

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.

Missions

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 Legislation

The Council proposed to the Emperor new laws and decrees. Napoleon was not obliged to apply them, rather he reserved the right of approval.

Interpret the Laws

The success of the Council depended upon the proper application of this power. It involved the application of the principle of private law (to which the administration, with no more rights than every citizen, should be submited himself) to the notion of public law (a body of law which judged the Administration on the basis of its contribution to the community). By successfully ruling within these principles, the Council became a popular legal body which was adopted in many other countries.

Role in Juristictional Disputes

The Council of State quickly became a sort of administrative court, ajudicating issues between the varied levels of the Administration and individual citizens and entities.

Administrative Role

Through the Auditors, the Council also exercised legal/police functions while supervising the Administration. the Auditors were particularly effective in countries under French administration.

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.

Cambacérès

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.