t was drafted rapidly by a commission of four eminent jurists and entered into force on
21st March 1804 when Bonaparte was still First Consul of France. On the 9th November 1799 (18 Brumaire) he seized power, overthrew the government, replaced the Directory with the Consulate with himself as First Consul. He did not declare himself Emperor until December 1804.
The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified. It was the first modern legal code to be adopted with a pan-European scope and it strongly influenced the law of many of the countries formed during and after the Napoleonic Wars. The Code, with its stress on clearly written and accessible law, was a major step in replacing the previous patchwork of feudal laws.
The preliminary article of the Code established certain important provisions regarding the rule of law. Laws could be applied only if they had been duly promulgated, and only if they had been published officially (including provisions for publishing delays, given the means of communication available at the time); thus no secret laws were authorised. It prohibited ex post facto laws (i.e., laws that apply to events that occurred before them). The code also prohibited judges from refusing justice on grounds of insufficiency of the law—therefore encouraging them to interpret the law. On the other hand, it prohibited judges from passing general judgments of a legislative value.
With regard to family, the Code established the supremacy of the husband with respect to the wife and children; this was the general legal situation in Europe at the time. It did, however, allow divorce on liberal basis compared to other European countries, including divorce by mutual consent. In any event not a very feminist view of legislation, but it was what was prevalent in 1804.
What strikes me most is the prohibition of laws applying to events that occur before the law is put in place. The United Nations Security Council is charged with the maintenance of international peace and security. Its powers include the establishment of peacekeeping operations, the establishment of international sanctions, and the authorisation of military action. The Council therefore, produces resolutions to make its decisions legal and enforceable across the world, and in particular in those member countries, signatories to the United Nations Charter. The need for a UNSC resolution is, in theory, based on global events that have already occurred. I submit then that any legal sanction put in place after these events is ex post facto. The wording and intent of each resolution is based on the desires of certain influential nations. Those influential nations can push through a resolution in order to give whatever action they propose taking, or policy they seek to put in place, the force of law.
The western powers were chomping at the bit to move against Libya. Egypt was merely observed and commented upon. Other disturbances in the area similarly observed, but the minute Libya came into play 'no fly zones' were flying around the place. The UNSC was called into action and the law was put into place. Some would say they did not act quickly enough; however, it takes a little while to muster support and push through a resolution. The more people on side at the start, the easier it is. Also, there is the matter of the Veto power of the five permanent members. Those, not necessarily in agreement have to be persuaded to abstain rather than say no, so it can take a little time to get going; but, get going it did.
I find the business of resolutions necessary but at the same time there is something uncomfortable about the manner in which they are brought about. In my view, it does not sit well with the rules of natural justice; however, I am often wrong and out of touch. In any event Napoleon Sarkozy doesn't see any problem in terms of the
Code Napoléon 207 years old today. Happy Birthday Le Code.
No comments:
Post a Comment