Sunday, March 1, 2015

Code Napoléon Recalled

A year away from another general election, the focus is back on money again. And once again ventures are being launched to reform the funding of the electoral process. This, of course, is a bottom-up venture in a day-and-age when the acceptance of our fundamental laws lies back some 238 years (the Constitution having been ratified in 1788). Since then law in the United States, case law governed by precedent, has grown enormously and represents a vast morass piled high enough to make a Himalaya. At a minimum, some constitutional amendment will be required to bring about the change reformers hope to achieve. Such an amendment requires two-thirds majorities in both houses of Congress and must be ratified by three-fourth of all states. Even if such a change passes, the accumulated precedents of nearly two-and-a-half centuries will be applied to its interpretation in practice—which is a way of saying that fundamental effective change from the bottom up is virtually doomed at the start.

Just a short time after the Constitution was ratified in the United States, the Napoleanic Code was established in 1804—but its earliest draft dates to 1793. This summarily wiped away the vast accumulation of many different versions of French Mediaeval law: a radically fresh start. The name that come to be attached to it tells us that it was top-down. That code itself was modeled on Justinian’s reform of Roman law, completed in 533—which tells us the size of that mountain of morass Napoleon had to cause to disappear…

The Code was—like its time—rational to a fault. It was, by design, intended to avoid the features of case law; thus it prohibits judges introducing a general rule, thus enlargement of the laws, because this constituted, in the eyes of framers, legislation by judges (Article 5). This also meant that precedent (stare decisis*) is not a binding feature of French law. But…

But, of course, no law, no matter how new and clean, can actually anticipate all of the cases that will be brought before judges. Every code is missy, as we would say nowadays, and therefore judges would be faced by cases in which the proper fit of the existing code would not cover the gaps. To prevent judges from avoiding such problems by not dealing with them. They had to use some part of the Code to apply it to the problem in the gaps. They were required, therefore, to engage in interpretation  (Article 4; for text of Articles see this link). In effect, therefore, the French Code, although intended to prevent legislating judges, also compelled them to interpret the law one way or the other so that the net effect is that French jurisprudence de facto works the same way as common law—although its judges are denied the favorite game played on Law & Order, our TV series, which often features a major hunt for precedents.

Which is a way of saying that reform, however good—and it is best if it is a brand new start—will gradually turn into another yet another new morass. Morass will pile on top of morass until it begins to seem like a mountain. The very shortest version of the French Code today has 3,000 pages; there is also an “expert” and a “mega” version (the last available on a searchable CD ROM).

Now tunneling beneath that mountain with a (probably small) popular movement of reform—and introducing say a few pages more stuff at the very bottom, i.e., as part of the Constitution—say regulating how money may be spent on elections—will barely be noticeable by the money itself which, like water, can penetrate any kind of mountain of morass at any point and cumulate wherever it wishes.

But for a small reform, likely to last, say, two hundred years, one does need a Napoleon.
* Stare decisis et non quieta movere. To stand by decisions and not to disturb the undisturbed. Thus to use case law established by previous cases and to respect their conclusions as law.

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