2006 Fiscal Year Final Research Report Summary
A Study of Historical backgrounds to French Civil code, with special reference to the relationships between the "Old law" and the Preliminary chapter
| Project/Area Number |
17530006
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Fundamental law
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| Research Institution | Otsuma Women's University (2006)
Niigata University (2005) |
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Principal Investigator |
KASAI Yasunori Otsuma W.University, Faculty of Letters, Professor, 文学部, 教授 (80114437)
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| Co-Investigator(Kenkyū-buntansha) |
MATSUMOTO Emi Niigata University, Law School, Associate Professor, 人文社会・教育科学系, 助教授 (50303102)
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| Project Period (FY) |
2005 – 2006
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| Keywords | France / Civil Code / Preliminary chapter / registration / judges and courts / Old law, roman law / lawgiver / the public |
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| Research Abstract |
The preliminary chapter of the French Civil Code has attracted interests neither of jurists or historians through its bicentennial existence until very recently. This research, based on original materials and recent academic works, tried to make a kind of continuity of the Old regime's legal structure clear by comparing the judicial and normative structure under the Old law with the contemporary EU structure. It is concluded that the preliminary chapter has helped to conceal a continuous legislative activity by the French judiciary. This challenges the traditional view of regarding the Code as the guard of the legalism (legicentrism) and of the separation of legislative and judicial powers. In this way this study suggests to reconsider the bases of the modern Constitution itself, the separation of the powers as well as the authority of the judiciary.
This study examines also the notions of "publication" and "promulgation" of the law, as well as the function of "legislator" or "lawgiver". As for the first set, the meaning can not be clear without taking account of the complexity of the relevant judiciary system, which was the principal part in the Old French system. Also, those notions and the function can be traced back to those origins in Ancient laws such as Roman law and Greek law. The authors attempted to investigate into the nature of using the written law in Greece which is called "unpacking the law" in this study. It is hoped that this study will open a possibility in comparing the transcendent authority of the lawgivers such as Solon and Justinian with that of modern lawgivers such as Bonaparte and others.
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