Women and the Code Napoléon
By Louise Hicks
In this article, I will examine Napoléon's arguably greatest achievement: the Code Napoléon, and its impact on women's rights. I will consider the following topics:
I must first tell you that I am no expert in the period and have the dubious honour of being a mere lawyer. I first became a solicitor and barrister of the Supreme Court of Scotland, followed by a dabble in English law, and then became a solicitor and barrister of the Supreme Court of Victoria in 1993 having moved to Melbourne from Scotland.
It was whilst completing my degree at Edinburgh University that I first read and studied the Code Napoléon , such was its continued importance to European Law. I do not purport to examine all of its articles in this paper but merely to consider it as a whole in the context of women's rights. Fear not, however, dear reader, I do not intend to judge with a modern eye legislation that was passed last century. I intend merely to compare the situation before and after the Code and to consider its importance today.
Pre Code Regime
Prior to the Revolution, marriage and family life was almost exclusively under the control of the Church and Canon Law. Before marriage, a woman was subject to the authority of her father and this authority passed to her husband in due course, almost to the exclusion of any economic freedom for the woman.
The husband had full authority over his wife and her wealth. On marrying, the husband and wife's assets (both present and future) were automatically combined, and it was the husband who administered this joint estate without the wife's consent.
She could not dispose of any property, make contracts or bring actions in court in relation to the property unless she was the sole owner of the property in question, which was not common.
Divorce was non-existent and annulment infrequent. Legal separation was possible only on the grounds of physical abuse or defamation. The husband's adultery was not a ground for separation except in the most extreme cases, but the adultery of the wife was a ground for separation; and further, she could be detained in a convent for an indefinite period and her wealth split between her children or other relatives and the convent.
In 1787, papers began to appear claiming that all humans were equal and that sexual discrimination was therefore unnatural. The claim that women should be given the vote was also made, and in 1789 the National Assembly heard many motions "en favour de sexe" which brought to the fore the questions of economic subordination of women and the evils of the aforementioned convent life.
This was a time of revolution, of ideas of citizenship. The feminists merely argued that this concept should be applied to all, regardless of sex. They were not alone. In February 1792, many Parisians of both sexes requested the Assembly to pass laws against the power of the father and of the husband.
It was also the time of women's groups and of Olympe de Gouges who, in June 1791 declared "the Rights of Women", which included a telling comment on the role of the Law: "law is the expression of the general will: all female and male citizens have the right to participate personally, or through their representatives, in its formation."
Many would argue that these groups had little effect, but they did lead to a growing awareness of rights, and together with all of the above measures, led to some improvements in the lot of women.
In 1791 the National Assembly proclaimed the principle of civil marriage. In 1792 divorce laws were passed and all persons were declared of age at 21. However, there were no gains in the areas of economic security and no moves towards full citizenship, such as demanded by the Society of Revolutionary Republican Women, which, together with all women's clubs, was subsequently declared illegal in 1793 by the National Convention as enemies of the Revolution. Olympe de Gouges was guillotined.
Although the French revolutionary Constitution of 1791 specifically refused to grant citizenship to women, the idea of a social contract between husband and wife gained momentum. This concept was later expanded in the Code. However, there were other more pressing matters that made the need for a Code a matter of priority.
Society's structure had been subject to substantial change during the Revolution. Ideas of liberty, equality and fraternity, although not completely realised in the case of women, led to an increased expectation. Furthermore, Napoléon realised the need for speedy amelioration. The law had been left confused and diminished. Canon law had been pushed aside leaving huge gaps in the legal structure so long in place. There remained a frightening array of laws in the form of Royal Decrees, ordinances and case law.
There was diversity in the law from place to place: Roman law in the South, and customary law based on feudal Frankish and Germanic institutions in the North.
Napoléon saw the need to balance power between the Courts and the legislature instead of stripping the Courts of their power by confining them to literal applications of statutes as the early revolutionaries had done. His aim was to effect a consolidation of the achievements of the Revolution and a smooth transition from past to present.
All attempts at codification prior to Napoléon had failed. These attempts had often sought merely to bring the laws together in a user friendly package. Napoléon aimed higher; he strived for a complete legislative statement of principles rather than rules. He wanted purely rational law; any gaps were to be filled by the Courts by means of logical reasoning and analogy from other provisions.
Napoléon started the task in August 1800 shortly after becoming consul for life. The laws were enacted between 1801-1803 and were one body of legislation by 1804.
Napoléon's contribution to its drafting should not be underestimated. He was a keen contributor to the debates and often kept the lawyers on track when they ran the risk of becoming too theoretical without due consideration of the practicalities of any given situation (a common failing, I am afraid).
He was assisted in his task by Rousseau. It was he who held the opinion that legislation was the most important governmental activity and a moulder of men and states. This certainly fitted in with Napoléon's visions of himself and the future. Rousseau's insistence that women were vastly inferior to men guaranteed that women would be disappointed in the Code. It should be remembered that Napoléon had some interesting views on the subject himself.
The structure of the Code falls into three sections:
I do not intend to provide the reader with an in depth legal analysis but simply to re examine some of the issues raised above and see what progress the Code made from old regime with a particular emphasis on women's rights.
Napoléon did not seek to wipe out the past but to assimilate the old and the new into a cohesive whole. Interestingly, Olympe de Gouges' idea of the social contract between husband and wife was adopted in part.
The Code introduces the idea of Community. This was the joint pool of assets and liabilities in a marriage. The Code explains what was to be included in the pool and what was excluded by law. The wife's dowry was included but her "paraphernalia" was not. The term is not defined in the Code but using Napoléon's intended means of interpretation, ie. the use of logic and deduction from other sections, one can assume that it meant little more than her trinkets. married women could not make a donation during their lifetime without the assistance or special consent of the husband or being authorized by law.
The husband had the power and management of all of the property in community. One may say that in this way, the system was no different to the old regime. However, the husband could not alienate or pledge the immovables and could only exchange immovables with the consent of the wife and had to account to her like an agent or usufructuary in relation to her assets in the community.
Of most importance was the provision that parties could contract in any way that they chose should they wish to depart from the general principles set out in the Code. They could not act without good morals nor could they derogate from the rights given to the husband by law but otherwise they had freedom of contract. Specifically, they could specify whether they wanted separation of debts or goods or both.
Separation of debts meant that each parties liabilities remained without community but it is less than clear cut to say that the husband did not remain liable to his wife's creditors except in special circumstances, for example where she was a public trader.
Separation of goods gave women most power. By this means she regained much of her ability to administer her own property, at least the moveable property. Immovable property was considered much too important and she could never alienate that without the consent of her husband. Separation of goods could be provided for in the contract or could be sought at a later date, for example where a husband placed the woman's dowry in peril due to mismanagement. In these circumstances, the wife could revoke any alienation of property by the husband.
One should note that she never gained full control over her immovables and still had to pay one third of her income into the pool of assets as the expenses of marriage.
Married women were incapable of validly accepting a succession or donation without the authority of their husbands or an act of law if he refused. However, there was no difference between brother and sister in relation to succession from a parent.
Property Women gained the potential to administer their moveables and paraphernalia but there were restrictions on that power in relation to donation. The Code provided for a degree of freedom of contract so long as the contract did not interfere with the husband's basic rights over immovable property. It is however, interesting to note the husband's obligation to account to the wife for his administration of her goods in community and her power to seek separation of goods if he mishandled his power.
The Code did not change this area of law a great deal although it is interesting to note that Napoléon took a great deal of interest in the debates about divorce; perhaps he had something of his own affairs on his mind.
The husband's adultery was still no ground for divorce unless he brought his mistress home. However, the wife's adultery could land her in jail for up to 3 months and was certainly a ground for divorce. In this regard the husband had the same power as over a minor.
Other grounds for divorce were introduced such as severe and grave injury, either party being condemned to an infamous punishment or mutual consent where the parties had been married at least two years but not more than twenty, where the wife was no more than 45 years of age but more than 21 and where the husband was at least 25. For the last ground of divorce one also required the consent of parents and other descendants of the spouses. What a lot of consents! However, this was a major amendment to the previous law and this together with the aspects of freedom of contract in relation to property brought to the marriage went some way down the road of the concept of a social contract between men and women.
The Code led to an increase in women's rights but fell well short of the grand social ideals of liberty, equality, fraternity. A woman's liberty could be remover by her husband for adultery where he could escape all legal censure; equality could never be achieved while she did not share full rights of citizenship and property. As for fraternity - what a boys' club!
But let us not be unjust for these were different times and Napoléon put in place the beginnings of great social change. The idea of the social contract which was introduced in the Code was to endure and expand with time.
Effect of the Code to the Present Day
Napoléon said that "my fame in the eyes of posterity will rest even more on the Code which bears my name than all the victories I won."
He set out to produce a legislative statement of principles and in so doing made the Code potentially international. This potential was fulfilled. As Napoléon intended, it spread through Belgium, Luxembourg, the German territories on the left bank of the Rhine, the Palatinate, Rhineish Prussia, Geneva, Italy and the Netherlands.
It remains in force in Belgium, Luxembourg and Monaco and its reverberations can be felt in most legal systems in Europe. It is an achievement of which Napoléon was justifiably proud.
Allison's Europe Vol 4
Napoléon and America R.C. Holtman
Consortium on Revolutionary Europe 1750-1850 Proceedings 1989 H. Horgan
The French Revolution G. Long
1804 Edition of the Code Napoléon
See Also: Full Translation of the Civil Code.