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Common Law vs. Napoleonic Code

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In the year 1666, the Great Fire of London destroyed more than 13,000 properties covering an area of 436 acres. The narrow pathways and streets that snaked through the city made it easy for the fire to spread quickly among buildings that were made mostly of wood. Immediately after the flames died down, King Charles II started reviewing architectural plans that would have completely redesigned the city. He issued a Royal Proclamation on the 13th of September:

Since it hath pleased God to lay this heavy judgment upon us all in this time, as an evidence of his displeasure for our sins, we do comfort ourself with some hope, that he will, upon our due humiliation before him, as a new instance of his signal blessing upon us, give us life, not only to see the foundations laid, but the buildings finished, of a much more beautiful city than is at this time consumed (The Historical Charters and Constitutional Documents of the City of London, p. 224).

Of all the visions put forth to guide the rebuilding of London, perhaps Sir Christopher Wren’s is the most well-known. The previous year, he had travelled to Paris and admired the wide boulevards and grand design of that city. His plans would do away with the narrow streets that had only served to spread the flames. In their place were to be wide avenues with classically designed buildings and carefully placed plazas. However, virtually none of his designs—nor anyone else’s, for that matter—were approved for construction. The landowners in London chose instead to rebuild along similar boundary lines, albeit with stricter laws on materials and spacing.

In an interview regarding the plans to rebuild London, Charles Hind, currently the Chief Curator at the Royal Institute of British Architects, stated that “Wren’s is the most practical and interesting of all the plans…. But personally I’m glad his scheme didn’t get built. I think it would have still been essentially un-English to masterplan on that scale. I rather like the higgledy-piggledy, piecemeal nature of London’s development over the centuries” (“How London might have looked: Five masterplans after the great fire of 1666,” TheGuardian.com, January 25, 2016).

Differences Between Napoleonic Code and British Common Law

In much the same way that the cities of London and Paris reflect very different approaches to design, so, too, do the laws that govern the respective nations reflect different perspectives. English common law is not written down as legislation but represents a legal system based upon precedent: centuries of case law largely based on Judeo-Christian values. On the continent and in many nations outside the British Commonwealth, Code Napoléon, or the Napoleonic Code, is the basis for governing laws. The key difference between these two systems is that common law is a bottom-up legal system that implies, “What is not forbidden is permitted.” In other words, common law defines what you can’t do while leaving you free to do everything else, while the Napoleonic Code, also known as civil law, is a top-down system that often becomes a vastly more bureaucratic and controlling approach to governing citizens, effectively spelling out in detail what you can do, under a “Government knows best” mantra.

In Canada, we find a mix of these two systems. The Province of Quebec utilises a fusion of Napoleonic civil law and common law, using the latter for criminal and other matters, while the rest of the country is based on common law for both civil and criminal applications. These two systems have been well established since Canadian Confederation in 1867.

However, in 1982, Prime Minister Pierre Trudeau signed into law the Charter of Rights and Freedoms. The intent behind the Charter was to firmly establish in the Constitution the rights and freedoms of Canadian citizens and permanent residents, which would then be authoritatively interpreted by the Supreme Court of Canada. Canadians enjoyed the same freedoms prior to the Charter as after. The difference that has become evident is that unelected judges have now been given power to strike down laws that appear to infringe on the 1982 Charter’s vaguely worded rights and freedoms. Such was the case in 2015, when Bill C-14, a federal law prohibiting physician-assisted dying, was struck down because it was considered an unconstitutional violation of the Charter right to “life, liberty and security of the person.” The Supreme Court also used the ambiguous list of rights and freedoms to overrule a law prohibiting euthanasia.

In the Globe and Mail, Canadian jurist and legal scholar Grant Huscroft argued that the Charter had given the judiciary too much power:

Consider just a few of the recent Charter decisions made by Canadian courts. Same-sex marriage has been established, along with abortion on demand; marijuana has been legalized… and prohibitions on private health care have been struck down, along with laws banning tobacco advertising. Laws governing parental discipline of children and prohibiting the possession of child pornography have been rewritten by the court in the course of their constitutionality being upheld (“Yes. The Charter of Rights has given judges too much power,” TheGlobeAndMail.com, July 31, 2017).

The ultimate effect of the Charter of Rights and Freedoms has been to override the common law system and replace it with a system that more closely resembles the Napoleonic Code. In his book titled The Trouble with Canada… Still!, author William Gairdner describes how Prime Minister Trudeau effectively turned Canada’s legal system on its head. “In short, after a mere 115 years of existence as a self-reliant people exercising responsible government, we surrendered the supreme authority over our own lawmakers and handed it back to judges we could not remove. Suddenly, with the stroke of Trudeau’s pen, we—he—replaced parliamentary sovereignty with judicial sovereignty” (p. 44).

A New Form of Government

Upon consideration, it becomes clear that neither English common law nor the Napoleonic Code provides a sufficiently solid legal foundation for right government. Neither of these systems provides a perfect law of liberty (cf. James 1:25). Legal scholars may argue the nuances of the rights and freedoms of citizens under different legal systems, but an entirely different form of government will soon be established by Jesus Christ to set a new precedent—a legal foundation based on the commandments of God. The ancient Scriptures state clearly that “it is not in man who walks to direct his own steps” (Jeremiah 10:23). We require direction based on godly wisdom and knowledge, and the perfect law of liberty defines what is right and wrong according to God’s will and purpose, not our own. It does not change from generation to generation but remains a constant guide to how we are to conduct ourselves for the benefit of our households, our neighbours, and our nations.

The same God to whom Charles II attributed the destruction of the City of London in 1666 will remove both the higgledy-piggledy approach of English common law and the top-heavy burden of Napoleonic civil law and replace them with a perfect government. As it is written in the book of Isaiah, “Of the increase of His government and peace there will be no end, upon the throne of David and over His kingdom, to order it and establish it with judgment and justice from that time forward, even forever” (Isaiah 9:7).

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