French comparative law rose to prominence in the first part of the twentieth century. The first steps of comparative law—premiers pas—led to the above-mentioned Paris Con- gress of 1900 which opened a new phase sometimes re- ferred to as la Belle Époque du droit comparé.
1. The premiers pas of Comparative Law in
France
Charles de Montesquieu (1689–1755) is often considered to be the first major comparatist in modern times. In his princip- al work, L'esprit des lois, Montesquieu first ponders the idea that laws are by nature universal, but then rejects this ap- proach, insisting instead that diverse societies bring about legal diversity.10 Some French scholars today view Mont- esquieu as the father of sociology, political science, and comparative law.11 Others emphasize the crucial part he
played in comparative constitutionalism.12 All scholars agree, however, that in recognizing the need to understand other legal systems before being able truly to understand your own, Montesquieu provided a new perspective that fun- damentally changed legal thinking.13
Before the French Civil Code of 1804, French universities did not teach French national law. French national law was not unified and the universities, as elsewhere in Europe, focused on the law common throughout Europe, that is, on the Roman-canon ius commune, written not in the vernacular but in Latin. Although some legal historians have expressed doubts as to the practical effectiveness of the ius commune in Europe, the fact remains that, in the eighteenth century, there existed a common European legal culture on the basis of Roman civil and canon law in legal academia as well as in practice.14 The diversity of French law and the predomin- ance of the ius commune were overcome only with the en- actment of the Code civil in 1804.
Montesquieu had considerable influence on the drafters of the French Civil Code. Thus, Portalis expressed Montesquieu's famous view that laws should be drafted
simply and concisely: ‘the task of legislation is to establish general principles, rich in implications, rather than to des- cend into the details of every question which might possibly arise’.15The drafters of the French Civil Code used compar- ative law in a variety of ways to unify and harmonize conflict- ing legal regimes in France. First, the drafters conducted in- ternal comparisons between the Ancien droit16and the inter- mediary law of the revolutionary period. This was all the more difficult since theAncien droit itself was divided between the pays de droit écrit of the South, influenced by Roman law, and thepays de coutumes or droit coutumier in the North, based on Germanic customs.17 Second, the drafters explored foreign law, particularly the Prussian code.18In order to draw on foreign models, Napoléon Bona- parte created a specific office called the Bureau de legisla-
tion, whose function was to translate major foreign statutes
into French.
It is often said that once a country enacts its own national code, it tends toward national isolation. The pride of pos- sessing a new and modern national code discourages law- yers from looking abroad for alternative sources of law. Indeed, when the French law faculties were reorganized in
1805 after being suppressed during the Revolution, their teaching no longer concentrated on the all-European ius
commune but on the French Napoleonic Codes as the em-
bodiment of the national legal system. Throughout the eight- eenth century, major philosophers had emphasized the droit
naturel, the idea that universal law exists and precedes all
existing laws, both in time and epistemological foundation. Scholars now proclaimed that the new Codes described and established this rational and universal law. This is the philo- sophical context in which the Ecole de l'Exegèse developed. This school encouraged scholars to teach and comment only on the French Civil Code which, of course, left little if any room for comparative law. Its spirit is captured in Professer Bugnet's famous quote: ‘Je ne connais pas le droit civil,
j'enseigne le Code Napoléon’ (‘I do not know civil law, I teach
the Code Napoléon’).
Somewhat surprisingly, and in spite of this positivistic and legalistic attitude so characteristic of the nineteenth cen- tury,19major steps were undertaken to promote comparative legal scholarship in France. As early as 1831, the highly prestigious Collège de France created a special chair for His-
In 1834, Jean-Gaspard Foelix, a Parisian lawyer and avocat, founded the Revue étrangère et française de législation et
d'économie politique. He did so not only in order to help
French lawyers improve their knowledge of foreign law, but also to improve French law through comparison. Unfortu- nately, the time was not ripe for such an ambitious ef- fort—the French still regarded their Civil Code as the only relevant source of law—and the Revue was discontinued in 1850. None the less, in 1838, the Faculté de droit de Parisin- stituted a new course on comparative criminal law, and in 1846, it created a chair for Droit criminel et législation pénale
comparée. This comparative approach to criminal law fo-
cused on the Code Pénal, first enacted in 1810 (revised, first in 1832 and then again in 1863). Thus, criminal law was one of the fields in which comparative studies were developed in France at the time. By the end of the nineteenth century, comparatism had spread to other areas of French law as well, in particular to the discipline of civil law. The Faculté de
droit de Paris offered lectures on the ‘droit civil approfondi et comparé’.20It is worth noting that during this period, the term ‘comparative law’ was never used alone, that is, in the sense of an independent field of study. Instead, it was always
paired with, and integrated into, a specific subject such as comparative criminal law or comparative civil law.21
One of the most important events in the premiers pas of comparative law in France was the creation in 1869 of the
Société de législation comparée, a society that is still very
active today. Its purpose is to promote the study and com- parison of various legal systems as well as the search for practical means of improving the law.22To this end, the So-
ciété published the Annuaire de législation étrangère, an in-
ternationally noted and successful work. In France, this prompted the Ministry of Justice to establish the Comité de
législation étrangère in 1876. Its primary task was to trans-
late all existing national codes into French under the direc- tion of the Société de législation comparée. In 1889, the So-
ciété held an extraordinary session to celebrate its twentieth
birthday. On this occasion, its president, Professor Bufnoir, expressed the view that legislation should no longer be a loc- al enterprise; instead, it should draw on the experience of the whole world. He also insisted that comparative law should not only play an informative role but that it should also be an important tool for the legislator.