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A (Very Short) History of the Napoleonic Code

« Ma vraie gloire, ce n’est pas d’avoir gagné quarante batailles […]. Ce que rien n’effacera, ce qui vivra éternellement, c’est mon Code civil ».Footnote 1 With these words uttered during his final exile on St Helena Island, Napoléon praised his probably most peaceful but also most lasting endeavour, the Code civil or Code Napoléon. Indeed, the Napoleonic Code was far more than a technical exercise of civil law ‘codification’.

Promulgated on 21 March 1804, the Code civil—which was renamed into Code Napoléon in 1807—was the accomplishment of centuries of attempts to replace the locally divergent common law statutes by a single, codified and nationally applicable legal code. In the French context, the codification of civil law provisions meant not only the systematisation and harmonisation of legal provisions in a unified text; since civil law provisions reflected and institutionalised feudal and church privileges despite the arrival of absolutism under Louis XIV, the French territory was fragmented into a multitude of parallel legal provisions and jurisdictions, mostly exercised as part of unwritten, customary powers of local feudal lords. To the extent that religious and noble elites—despite the increasing power of the royal court—were thus able to maintain unchecked and direct control over commoners in their territories, the fragmentation of civil law had very concrete implications for the power distribution between the royal government, traditional power holders, and local populations.

This may help to understand why multiple efforts of the French kings to introduce a unified, written and universally applicable code of civil law failed. Although local law was progressively formalised in written form throughout the sixteenth century, the Third Estate’s demands for centralised codification remained unheard. As early as in 1665, Louis XIV installed a codification commission that subsequently had to abandon its task facing the resistance of the local parlements, the regional jurisdictions that applied the customary local law. Until the French Revolution, only partial homogenisation was achieved, mainly through a royal decree imposing the university teaching of ‘French law’ (understood as the collection of royal ordonnances and Paris customary law) in 1679, the edition of first teaching manuals on ‘French law’, as well as the ordonnances d’Aguesseau (1731–1747), which unified parts of the donations and inheritance law (Ourliac & Gazzaniga, 1985).

The lack of transparency, but also the arbitrariness and the continuous institutionalisation of feudal privileges under the fragmented French civil law system made the elaboration of a nationally unified and centrally enforced code of civil law a shared demand of all groups supporting the French Revolution. The Assemblée constituante announced the project of a national civil law code in August 1790, and in October 1792, the National Convention established a reform commission led by Jean-Jacques Régis de Cambacérès, who produced three drafts in 1793, 1794, and 1796. Due to the ongoing internal troubles and external wars, the adoption of the project was suspended. Only after Napoleon came to power as First Consul in 1799, a new commission was installed, again led by Cambacérès. Using many of the provisions already prepared by the previous commission, the final version of the Code civil was presented in January 1801 (Sagnac, 1989). Although it remains disputed to what extent this version was directly influenced by Napoleon’s wishes and preferences, it is uncontested that the future emperor took a vivid interest in the project: he presided more than half of the 107 sessions of the Council of State during which the project was debated and modified after its initial presentation (Halpérin, 2003, pp. 12–13). For Napoléon, the Code civil was poised to become a highly important source of regime stability and legitimacy—in France but also in the annexed territories and subdued states that subsequently formed the Napoleonic Empire. The reason for this can be found in three complementary characteristics of the Code.

First, the Napoleonic Code was an instrument to anchor and complete the political transformation of the French Revolution in the wider society. In that sense, the Code transposed into civil law many of the Revolution’s political achievements, including the universalist principles of legal equality and rule of law, the separation of the Church and the state (e.g. via the introduction of civil marriage and the legalisation of divorce), the abolishment of noble privileges (e.g. via the introduction of a robust private property law), as well as a liberal conception of (male) citizens as self-determined agents who can enter and dissolve social relations as part of a contractual transaction. The provisions of the Code were supposed to be the result of the practical exercise of universal reason, and therefore equally applicable to all members of society, regardless of their social or economic status.

Another important feature of the Code was its ambition to bring stability to post-revolutionary France. One explicit aim was to institutionalise and thus to stabilise many of the social and economic changes brought by the Revolution. Furthermore, the liberal conception of property was supposed to counter fears of collectivisation held by bourgeois elites. Finally, some of the provisions contained—compared to the emancipatory programme of the early Revolution—even regressive elements, including a patriarchal conception of the family that considered wife and children as part of the husband’s property, and a corresponding patriarchal conception of society. Through these provisions, Napoleon sought not only to legitimise his increasingly autocratic rule but also to secure support from traditional elites by offering legal protection against more radical revolutionary demands.

Third, the Napoleonic Code was seen as an instrument to support and stabilise French rule in Europe (d’Ambra, 2006, p. 18). To be sure, the exportation of the Code civil could provide, compared to other revolutionary institutions such as universal conscription or the abolishment of church privileges, only few direct material benefits to French imperial rule over most of Europe. Yet, the Emperor saw in the promotion of the international diffusion of the Napoleonic Code a personal priority because its universal application symbolised the universal ambition of the French Revolution: “the image of a perfect Code that was given as an example to all the peoples.” (Halpérin, 2003, p. 19) French officials hoped that expanding the application of the Napoleonic Code not only would facilitate the administration of annexed territories or vassal states but would also help to anchor the social and political changes brought by the Revolutionary and Napoleonic Wars to local societies by winning the support of peasants and especially urban Bourgeois, hitherto dominated by traditional feudal elites (Fehrenbach, 1974, p. 12).

The Diffusion of the Napoleonic Code in German Territories: The Surprising Importance of Local Diffusion Agents

Despite Napoleon’s explicit ambition to export ‘his’ Code to promote stability and legitimacy of French rule abroad, he did not pursue a policy of coercive imposition in German territories. The only exception were those territories that had been annexed by France during the Revolutionary and Napoleonic Wars, including the départements on the west bank of the Rhine (annexed after the War of the First Coalition in 1797), as well as territories in Northern Germany such as the Hanseatic Cities (annexed as late as 1811).

In those latter areas that became part of the French departmental administration, the extension of the metropolitan legal system, including the application of the Napoleonic Code, was a central instrument of pacification and integration. Coercive measures, including the use of military force and the deployment of militarised Gendarmerie forces, were employed to crush any resistance attempts against the new legal order. Furthermore, to speed up the stabilisation of French rule by ensuring the coherent application of the Code and thus restoring popular trust in the rule of law, high-ranking French administrators were sent to the new départements, where they worked with sympathetic local notables to man and reform local jurisdiction (Broers, 2015 [1996], pp. 49–69).

The situation was different in the formally independent German states that formed the Confederation of the Rhine. To stimulate diffusion in these territories, Napoleon essentially used two mechanisms: first, communicative persuasion via diplomatic but also expert channels in order to convince governments of hesitant German states of the advantages of adopting the Code (without, however, offering direct material benefits); and second, the use of newly created imperial fiefs, such as the Kingdom of Westphalia or the Grand Duchy of Berg, as ‘model states’ that would demonstrate the practical benefits of adopting the Napoleonic Code to the rest of German states (Fehrenbach, 1974, pp. 14–16).

Under these circumstances, the decision to introduce the Napoleonic Code was essentially a matter of choice for the member states of the Confederation of the Rhine, and individual leaders demonstrated a remarkable degree of political autonomy and creativity in making this choice. In a demonstration of inclination to comply with French requests to adopt the Code, several states installed reform commissions to study if and how Napoleon’s request could be accommodated (Weinacht, 2002b, p. 208). Yet, some of these governments appear to have been motivated rather by a willingness to appease the French leadership, rather than by a genuine will to implement the Code in their territory. Still by 1809, the adoption of the Napoleonic Code by the states of the Confederation of the Rhine remained partial at best: “In some of them, mainly the smaller ones, the Code Civil was implemented fully or only with minor changes; in the case of the larger states, however, more recent German historiography […] speaks of the ‘reception’ of the code, which was either implemented in a strongly modified form (Badisches Landrecht) or was only discussed but not codified (Bavaria and Nassau).” (Zweynert, 2011, p. 130) In other words, the diffusion of the Napoleonic Code remained incomplete, featuring complete implementation (e.g. Westphalia, Berg, Ahremberg), various degrees of modification and localisation (e.g. Baden, Hesse-Darmstadt, Nassau), and rejection (Württemberg, Bavaria). How can this incomplete diffusion be explained?

Prior to the French Revolution, the legal orders in the different states and territories of the Holy Roman Empire were even more fragmented than in pre-1789 France, featuring locally diverging mixes of Roman, Germanic, regional, urban as well as clerical law orders. Only in some major German states, projects for the codification of civil law had been completed. The two most prominent examples were the Codex Maximilianeus Bavaricus Civilis (promulgated in Bavaria in 1756) and the Preußisches Allgemeines Landrecht (“General State Laws for the Prussian States” (ALR), promulgated in Prussia in 1794). For contemporary legal experts it is “beyond doubt the French Code civil is intellectually the most significant and historically the most fertile” (Zweigert & Kötz, 1998, p. 85) compared to these earlier codes, partially because of its more liberal dispositions and the refusal to acknowledge remaining feudal privileges. This is, however, an ex-post assessment, which may or may not have been shared by German legal and political elites at the time.

Convinced of the necessity of unifying the fragmented civil law, but also of the progressive and modernising benefits of the Napoleonic Code compared to the existing legal orders, legal experts from different German states called for its transposition already in the early days of the Confederation of the Rhine (Schubert, 1977, p. 130). In Bavaria, the law professor and founder of modern German criminal law Feuerbach, who had called the Napoleonic Code “one of the most beautiful memorials of the French name” (Fehrenbach, 1974, p. 33), was tasked with elaborating a Bavarian version of the Code in 1807. His counterpart in Baden, government minister Brauer, emphasised that the “new French civil legislation, of which authentic German translations are available, has made it possible […] to prepare shortly a fitting legislation for the Electorate [of Baden]” (Andreas, 1910, pp. 189–190). Some of these experts did perceive the Napoleonic Code as an instrument of alien domination, such as the Nassau government minister Almendingen, who saw the Code as a tool for German states to be “‘confederated under the dictatorship of France’ and to make them ‘bow under the yoke of an alien system of legislation’” (Weinacht, 2002b, p. 207). Yet, it appears that most members of the German legal community did study the Napoleonic Code and found it a genuinely advanced piece of legislation, worthy of being introduced in the German context.

Actor Spotlight: Johann Nicolaus Friedrich Brauer

Born in Büdingen (County of Isenburg-Büdingen) in 1754, Brauer became a civil servant in the Margraviate of Baden in 1774. Overseeing the policies of public education, administrative reform, and the interior, he became the most influential member of the Baden government during the period of the Confederation of the Rhine. Beyond his role in the adoption of the localized version of the Code Napoléon, he was responsible of the integration of the new territories acquired after 1806 and drafted a project for a new local constitution. In all these activities, he sought to promote a spirit of reform from above and to reconcile the aims of administrative rationalisation and of the preservation of local customs. In accordance with this goal, he promoted the voluntary adoption of the Code Napoléon as a way of adapting it to local needs instead of simply accepting a coerced external imposition. Beyond Baden , his six-volume legal commentary on the Code Napoléon became a reference for legal scholars in and beyond the Confederation of the Rhine. He died in 1813, the final year of the Confederation of the Rhine, while his legal heritage, the Badisches Landrecht , survived until 1899.

In many states, high-ranking legal experts and government officials also communicated with their French counterparts in order to understand and prepare the potential introduction of the Code. For example, the state minister of Nassau, von Gagern, communicated directly with Cambacérès, who was head of the commission that prepared the first draft of the Code and later became Second Consul under Napoleon (Fehrenbach, 1974, p. 27). German legal experts diffused their acquired knowledge in official consultation fora installed by German governments, such as the Giessen Commission on law reform of 1807 (Weinacht, 2002a). Other experts, such as Lasaulx in Koblenz, published German commentaries of the Napoleonic Code, often closely inspired from the French commentators Locré und Malleville, to facilitate the reception of the Code in the German academic debate but also in local jurisdiction (Fehrenbach, 1974, p. 29). The commentary by Zachariae, a law professor in Heidelberg, was so popular that it was even translated into French and became a standard reference in the homeland of the Napoleonic Code (Fehrenbach, 1974, p. 30).

To sum up, we can observe that, across the different states of the Confederation of the Rhine, members of the epistemic community of legal experts and officials were actively promoting the diffusion of the Napoleonic Code via the mechanism of communicative learning. The Code, despite its ‘alien’ origin, was actively translated, studied, commented—and generally seen as progress, even though most experts deemed adaptations in accordance with local legal traditions and social structures necessary. This epistemic community can therefore be seen as the diffusion agent that was the most supportive of the importation of the Napoleonic Code. The relative enthusiasm of these experts can be understood sociologically because its members were mostly occupying academic or administrative positions in which the rational improvement of legal administration and jurisdiction genuinely mattered, and thus did not perceive its introduction as a threat to their own existing privileges (Fehrenbach, 1974, p. 36).

The same is not true for local political and economic elites, to whom material cost-benefit calculations in many instances played a decisive role in shaping support for or opposition to the adoption of the Code. Indeed, for many of the traditional legal orders in German states, the introduction of the Code would have meant a thorough transformation of legal and economic entitlements, especially (but not only) for the nobility and the Church—two elites that had already suffered a drastic reduction of their political power during the processes of German mediatisation and secularisation of 1802. While not aiming at the outright expropriation of feudal landownership, the Code’s provisions, including the abolition of serfdom, the replacement of traditional forms of jurisdiction, or the introduction of civil marriage and divorce, meant a further weakening of the remaining social and economic privileges of these traditional feudal elites (Weinacht, 2002b, p. 210).

In turn, other social groups had much to gain from a thorough implementation of the Code in their lands. Emerging liberal bourgeois elites, especially in Baden, Hesse and the Palatinate, saw the adoption Code as a liberal ersatz revolution which would help advance the political ideas of the Enlightenment, eliminate inherited prerogatives of the nobles, and facilitate the emergence of liberal market economies (Weinacht, 2002b, p. 208). Concretely, for the new bourgeois elites that were able to accumulate capital in the emerging manufacturing and merchant businesses, the elimination of feudal birth rights, the abolition of church land ownership, and the introduction of tradable land ownership meant improved economic opportunities, while the introduction of universalist principles of rule of law reduced the risk of arbitrary political interference (Arvind & Stirton, 2010, pp. 10–13).

A third, and obviously the most influential group of diffusion agents, were the political leaders of individual German states. Their motivation to support or oppose the introduction of the Code (or its localisation) seems to have been driven above all by the overall interest of regime stability, itself influenced by several factors. Among these were the perceived costs of not complying with Napoleon’s explicit desire to extend the application of the Code to the Confederation of the Rhine. The available historiography does not allow to specify these costs; however, there is no record of any direct punishment or reward used by Napoleon to incentivise the adoption of the Code by local governments that were located in territories outside direct control of the French administration or French rulers. To be sure, especially leaders of smaller states—who feared annexation by their more powerful neighbours—hoped that by introducing the Code they were “signalling their admiration and respect for Napoleon” (Weinacht, 2002b, p. 207)—and thus assure his support for their continuous existence. Local German governments may thus have expected to be rewarded in some form or another, but it does not appear that any concrete material reward was either promised or realised by Napoleon. This is in stark contrast to Napoleon’s conscription policies, which imposed—and in most cases achieved—uniform compliance across European borders by using the coercive threat of sovereignty removal via direct military occupation (Broers, 2015 (1996), pp. 75–76).

German political leaders had therefore leeway for a cost-benefit analysis with regards to the potential impact of the Code on their local societies. Although the states forming the Confederation of the Rhine were still governed by (more or less enlightened) absolutist monarchs, these leaders were not necessarily natural allies of the noble classes. During but also after mediatisation, medium-sized states such as Bavaria, Baden, and Württemberg were able to drastically enlarge their territories by annexing hundreds of formerly independent imperial cities, ecclesiastical principalities, and imperial knights. In the series of peace treaties that temporarily interrupted the Napoleonic Wars, especially those leaders who had switched to Napoleon’s side early, such as the Grand Duke of Baden, had been awarded territorial gains that would multiply the original size of their territories. For those formerly ‘sovereign’ noble and clerical elites, this often implied a very concrete loss of economic, legal, and political privileges. Incorporated in states that, as a result of mediatisation, experienced a sudden increase of social and economic diversity, some of these elites resisted to the further centralisation of state power and openly challenged the legitimacy of the new central governments (Arvind & Stirton, 2010, pp. 9–10).

The extent to which these expanding states were challenged by traditional elites seems therefore to have played a decisive role in determining their rulers’ support for adopting the Napoleonic Code. States with existing well-developed bureaucracies, in which the support of at least parts of the nobility was essential to upholding the current regime’s stability, were more inclined to give in to noble resistance against the Code. Such a case was Bavaria: its already existing civil law code had maintained many feudal privileges, and the Bavarian king built his authority on a close alliance with noble elites in the heartland of Altbayern. Only upon a direct request from Napoleon in 1809, he set up a commission with the official aim of preparing a localised version of the Napoleonic Code. This commission was led, as mentioned above, by Feuerbach, a passionate supporter of the Napoleonic Code as an instrument of progressive reform. However, noble leaders successfully lobbied in the Staatsrat, the royal advisory chamber, against the propositions of the reform commission by warning against the destruction of grown social structures and general upheaval that would result from the introduction of new property titles and jurisdictions. In the end, the introduction of the Code was never implemented, despite Bavaria being a close ally of France throughout most of the Napoleonic Wars (Fehrenbach, 1974, pp. 133–145).

A different case was the Grand Duchy of Baden, which had expanded its territory over four times the original size, covering eventually eight different legal systems. “Legal diversity at this level created obvious problems of administration, to which a common code was an obvious answer.” (Arvind & Stirton, 2010, p. 9) More importantly, the central government feared civil unrest as a result of missing allegiances among major parts of the newly incorporated local elites. In the absence of a firmly established legitimacy base and a centralized administrative apparatus, Grand Duke Charles Frederick perceived the introduction of the Napoleonic Code as a means to suppress existing traditional structures of governance and thereby creating an alternative source of legitimacy, to be gained from an image as enlightened defender of liberal reform against the archaic resistance of feudal elites. Consequently, the Grand Duke offered full support to the development of a localised version of the Code, authored by government minister Brauer and promulgated in 1810. This localisation, in the case of Baden, consisted, however, mainly in the accommodation of core noble fears: instead of abolishing feudal privileges completely, Brauer’s amendments in many ways rather constrained and formalised them. As a consequence, “the code of Baden, with its numerous additional provisions, was more similar to the General State Laws for the Prussian States than to the French code of law.” (Fehrenbach, 1974, p. 108) Yet, the relatively harmonious introduction proved that the principal aim of the Grand Duke was achieved, and the new Code rapidly “became one of the strongest and most vivid grips binding together the young and so heterogeneous grand duchy.” (Gross, 1997, p. 28).

The Outcome of the Diffusion of the Napoleonic Code in Germany

The material conditions for an interest-based adoption of the Napoleonic Code changed thoroughly in 1813 after Napoleon’s defeat in the Battle of Leipzig. The dissolution of the Confederation of the Rhine was only the most prominent consequence of the loss of Napoleon’s authority in the German states. Already before the Battle of Leipzig, several German states inside the Confederation, including Bavaria as one of France’s earliest and closest allies, had switched sides after the shattering of the Grande Armée in the Russia campaign of 1812. After Leipzig, several of the states created by the French Empire, including the Grand Duchy of Berg and the ‘model state’ of Westphalia, were absorbed by Prussia between 1813 and 1815. If the diffusion of the Napoleonic Code had been only based on the mechanism of material conditionality, Napoleon’s defeat should therefore have led to rapid abolition of ‘his’ Code in German lands.

Indeed, several states removed the Napoleonic Code the moment Napoleon’s shadow of hierarchy ceased to exist. This included smaller independent states such as the Hanseatic Cities, Hesse, or Anhalt-Köthen, which had adopted the Code in its original version as late as 1811. Also, several of the successor entities of the Kingdom of Westphalia, including the Duchy of Braunschweig and the Kingdom of Hanover removed the Code’s dispositions, albeit to various degrees and in various speeds. Hanover even abolished the Code retroactively, declaring it an illegitimate legislation enforced by alien occupation, and therefore void of any legal effect (Schubert, 1977, pp. 134–154).

The Continuous Application of the Code in Baden and in the Rhenish Provinces

Yet, the Napoleonic Code continued to be applied in many territories, such as in the Grand Duchy of Baden, where the Badische Landrecht , Brauer’s localised version of the Code, remained in vigour. The Baden government openly recognised the inherent qualities of the Code, arguing that it “had understood to eliminate the obsolete, to construct a practicable law mostly on the historical basis of Roman and Franco-German law, and at the same time to reduce the exaggerated and misleading use of Roman law by only recognising its authority as a complementary raison écrite.” (Boehmer, 1950, p. 299) A petition sent by members of the Baden nobility to the Congress of Vienna, asking for the return to the pre-Napoleonic legislation, did not succeed (Schubert, 1977, p. 178).

But the most notable and perhaps surprising case are the territories on the left bank of the Rhine, which had been part of the former model states of Berg and Westphalia and were subsequently annexed by Prussia after 1813. Here, local jurisprudence continued to apply the Code in its original version and even successfully resisted Prussian attempts to extend the application of its own code, the ALR, as shown in Table 4.1.

Table 4.1 Percentage of rulings using the Code Napoléon in trials at Rhenish courts
Full size table

Contrary to other German territories, it seems that a combination of legal socialisation and interest-based support had favoured the appropriation of the Napoleonic Code by local society and resulted in its perception as ‘local law’, which had to be defended against the introduction of less progressive ‘alien’—namely Prussian—legal dispositions. Only the Rhenish noble elites, economically and numerically weakened after ten years of direct Napoleonic rule, supported the Prussian government’s project of the replacement of the Napoleonic Code with the ALR, and sought direct contact with the new Prussian rulers (Mayenburg & Schmoeckel, 2005, p. 204).

As early as in 1815, the Prussian government installed a reform commission with the aim of preparing the ‘harmonisation’ of civil legislation among the old and new territories, a step that involved implicitly the revocation of French law in the Rhenish territories (Schubert, 1977, p. 156). In 1816, the commission issued a public call for comments and suggestions on the scheduled reform. Most of the reactions sent to the commission supported the continued application of French law, while mainly members of the nobility spoke in favour of its abolition (Wilhelm, 1975, p. 135). The supportive reaction of a coalition of the liberal bourgeoisie and local members of the jurisdiction demonstrated—both in its quantitative and qualitative dimension—the support for the Code that had developed since its introduction. These elites had gained concrete political and economic influence due to the legal transformation unleashed by the Code in the Napoleonic model states. In a heated public debate, core principles of the Code, including its provisions on rules of procedure, were defended as more advanced and better tailored to the requirements of local society than the equivalent provisions of the ALR (Schubert, 1977, pp. 158–162).

The attachment of most parts of local society to the Napoleonic Code—which was tellingly called by them the “Rhenish Law”—was perceived by the Prussian government as potential threat to the stability of their rule. As a consequence, this resistance proved more effective than the lobbying efforts of the remnants of the Rhenish nobility. In 1818, a cabinet decree was issued that ordered the upholding of the code law as Rhenish provincial law until a thorough revision of the ALR would happen (Schubert, 1977, pp. 165–166). Even six years later, the Prussian government had to realise that the support of Rhenish society for the continuous application of the Code had everything but vanished. A cabinet decree of 1824 ordered the immediate introduction of the ALR in the Rhenish territories. Again, a coalition of local legal experts and liberal elites vehemently opposed this decision. Dominated by a bourgeois majority, the provincial parliament voted, against the resistance of the noble and clerical estates, a resolution calling for postponing the introduction until a thorough revision of the ALR according to the standards of the Code had been achieved (Wilhelm, 1975, p. 136). In a public reaction, the Rhenish chamber of commerce maintained that

if the high level of business activity and the resulting prosperity in all social classes, in particular in the areas of trade and production for foreign countries, which has been favoured by the current legislation in the Rhenish provinces over the last 20 years, should not fall in decline, then we have to ask that in a future code of commerce the currently applied principles […] are maintained. (Wilhelm, 1975, p. 136)

Since such a reform of the ALR never materialised, Prussia maintained two different civil law codes on its territory, and the Napoleonic Code remained in application in the Rhenish provinces. So did the Code’s localised version in Baden—until the adoption of the new civil code of the German Empire, the Bürgerliches Gesetzbuch , in 1900.

A Lasting Source of Communicative Learning in German Legal Debate

Beyond Baden and the Rhine provinces, the Napoleonic Code had a less visible yet perhaps more lasting influence, namely as a source of intellectual inspiration for German legal debate. A first indicator of this long-term relevance is the continuous teaching of French law in German faculties that were located in states and territories where the Code was still in application. German scholars, such as law professor Zachariae in Heidelberg, continued to attract students from France, who in turn stimulated the demand for lectures on French law held in French language. These lecturers innovated teaching and research by developing new methods, including comparative legal analysis and the study of transnational origins of law (Haferkamp, 2005, pp. 68–69). They also helped to maintain the knowledge of French law in other parts of Germany thanks to their students practicing law upon their return to their home territories.

This socialising effect of continued teaching was reinforced by the continuous application of French law by the courts of appeal, including the Reichsgericht (Imperial Court of Justice) in Leipzig. Indeed, the new German Empire’s Supreme Court had a separate senate for jurisdiction in the domain of French law. In its judgements, this chamber continued to draw not only on the provisions of the Napoleonic Code but also on ongoing debates and jurisdiction in France (Gross, 1997, p. 35). To the extent that the ‘French’ senate was also competent for jurisdiction in the annexed imperial territories of Alsace-Lorraine, there was a ‘nationalisation’ of the Code civil as it became—for the first time ever!—a legitimate source of ‘national’ German law (comparable to the status of Germanic and Roman law), which went beyond its previous status as a source of particular law limited to a specific territory (Gross, 2006, p. 34).

Beyond its continuous application in teaching and jurisdiction, the Napoleonic Code had a more diffuse effect on the German epistemic community of legal scholars. In the years that followed the defeat of Napoleon, the question of the continuous relevance of the Code for the German context sparked a debate that would stimulate German scholarly debate for the following decades. This debate began as a controversy between two academics, the Heidelberg law professor Thibaut and the Berlin law professor Savigny. In 1814—two years after Napoleon’s defeat in Leipzig—Thibaut published a pamphlet that called for the introduction of a pan-German code of civil law implementing the principles of natural law that were also embodied by the Napoleonic Code, and enabling the unification of legal orders as an essential pre-condition of political unification (Thibaut , 1814). In reply to this, Savigny vehemently criticized the very idea of legal codification based on universal principles, denouncing such a project as contrary to German legal culture and the inherent value of the organically evolving German common law, including its fragmentation in several particular legal orders and its reliance on the tradition of Roman case law (Savigny , 1814). Thibaut’s and Savigny’s exchange resulted in the so called ‘codification controversy’ which would involve many more legal scholars in the years to come (Dufour, 1996).

Beyond the concrete question of the necessity of a common code of law for all German states, this controversy involved two competing visions of the functions of law and legal interpretation in society: Thibaut clearly reflected the wider spirit of enlightenment philosophy in the sense that he regarded rationalist legislation as a potential source of social education and progress, especially among the legally and politically fragmented German states. By contrast, in Savigny’s vision, any legal order had to fit closely the historically emerged structures of society, and any attempt to adopt universally applicable codes of law without taking into account historically grown, and therefore necessarily contingent, legal principles—let alone to transform existing social and political orders—was at best futile, at worst dangerous (Reimann, 1989, pp. 97–98). Following this line of thought, in a recommendation for the Prussian government written in 1818, Savigny even opposed the introduction of the ALR in the Rhenish provinces because of its perceived incompatibility with the historically grown structures of local society (Schubert, 1977, p. 162).

Savigny’s argumentation formed the basis of the ‘Historical School’, a new paradigm in German legal thought, which would structure much of German legal debate during the remaining nineteenth century. Against the universalist paradigm, which argued that any legal provision ultimately had to be derived from natural law, this school would argue that law always had to be adopted and interpreted with regards to its historical-cultural roots that were necessarily temporally and geographically specific, and that evolved organically, without interference from political authorities (Small, 1923).

Despite the Historical School’s relative success in rejecting the adoption of legal orders based exclusively on rational deduction from universalist natural law, the very idea of systematisation and unification of the German legal order continued to thrive. By searching for the historical roots of German law, the Historical School contributed to the idea of a distinct, ‘national’ German law. Some scholars even attempted to show that the Napoleonic Code had, as a matter of fact, its origin in the ‘Germanic’ law tradition: In 1841, for example, the Heidelberg professor Zöpfl published a study arguing that many family and heritage dispositions of the Code had their roots in Germanic law (Schubert, 1977, p. 182). Consequently, later scholars of the Historical School actively supported the project of a new Pan-German code of law after the creation of the German Empire in 1871, and joined the Romanticist movement in the search for sources of a distinct national German identity (Dilcher, 2016).

By the end of the nineteenth century, the Napoleonic Code once again came to be seen as a model, more precisely as a legitimate, albeit less advanced predecessor of the Bürgerliches Gesetzbuch (BGB), which had been elaborated between 1873 and 1900. Despite the growing political tensions between the French and German governments, the German legal community celebrated the 100th anniversary of the Napoleonic Code in 1904 with a conference and a dedicated publication, which also included contributions by French legal scholars writing on the newly adopted BGB (Gross, 1997, p. 35).

Although the new pan-German code of civil law cannot be seen as a mere evolution of the Napoleonic Code (very few BGB articles have direct equivalents in the Code), German legal scholars highlighted the inspirational impact of the French code during the preparatory works. In this aspect, the Napoleonic Code was not perceived as a ‘foreign’ law, but—due to its decades of practical application and teaching in parts of Germany—as a genuine local law order among others, such as the ALR or the Bavarian code of law. This was observed, for example, by the Bonn law professor Carl Crome in 1904, who summarised the different influences on the elaboration of the BGB as follows:

Thus, in the nineteenth century, the curious result [of the co-existence of different legal orders] was that the German common [i.e. non-codified] law had a structure that was much more Roman than the French law: [namely] the latter could appear to us like some sort of particular law, which—just like the Prussian Landrecht, the Codex Maximilaneus Bavaricus, and other particular laws—upheld the colours of German law facing the invasion of the Roman law paradigm [favoured by the Historical School ]! Our civil code [the BGB ] had to ‘navigate’ between these extremes […]. In the beginning [of the elaboration process], it was dominated by the Roman legal element. […] The influence that became more and more important originated in the set of particular German legal orders, and among these one has to count the French law, to the extent that it displayed features similar to the other particular legal orders. These features, we find them as of today in the [new] German civil code, and […] these entered our civil code often unconsciously. (Crome , 1904, p. 5)

Therefore, although the BGB cannot be seen as a mere modernized version of the Napoleonic Code, the latter continued to influence German legal tradition well beyond 1900: namely, through the very idea of legal regulation and jurisdiction led by the application of universal, abstract principles, including the separation of state and church, and the autonomy of private (male) citizens conceived as economically and independent free agents (Strauch, 2012).

In sum, the most important long-term outcome of the introduction of the Napoleonic Code in the German states can be seen in the successful diffusion of the Napoleonic Code as ‘ersatz constitution’ in the Rhenish territories. This presence—and its gradual acceptance as a particular German legal order in its own right—enabled the continuous relevance of liberal legal principles in German scholarly debate, teaching, and jurisdiction despite the growing influence of German nationalism (Schubert, 1977, p. 183). It is therefore not a coincidence that many legal experts who contributed to the liberal movement of the (failed) 1848 revolution of 1848 were socialised in the application and teaching of French law (Fehrenbach, 1974, pp. 150–151). Towards the end of the nineteenth century, the Code’s intellectual inspiration for the development of the BGB facilitated the establishment of a liberal society even under the semi-authoritarian government of the German Empire, involved in an increasing nationalist competition with the governments of the French Third Republic.

Conclusion: Understanding the Partial Yet Lasting Diffusion of the Napoleonic Code in Germany

The diffusion of the Napoleonic Code in the German states of the Confederation of the Rhine illustrates well the interaction of different diffusion mechanisms among specific diffusion agents, leading to counter-intuitive outcomes.

For Napoleon, the Code was destined to be one of the normative cornerstones of the transformation of Europe under French dominance. He clearly perceived the Code to be more than a hallmark of legal unification of mainland France, whose elaboration he had personally supervised and influenced. The Code was also poised to be an effective instrument to be used to form ‘stable’, centralised political orders in foreign countries. French administrators saw the Code as a core instrument for abolishing clerical and noble privileges, aligning patriarchal conceptions of private and public life, and offering reliable and transparent jurisdiction according to universal rule of law standards, which would appeal especially to emerging bourgeois elites (Broers, 2015 (1996), pp. 85–86).

Yet, compared to institutions that offered a more immediate utility for the conduct of war such as universal conscription, the French government did not use coercion to impose the Napoleonic Code on the formally sovereign states of the Confederation of the Rhine. Napoleon mainly tried to promote diffusion via persuasion and role-modelling (via the ‘model states’ of Westphalia and Berg). The rulers of the other states of the Confederation therefore had a level of autonomy that was conditioned but not determined by the shadow of hierarchy of the French Empire. They were able to consider the risks and benefits of importing the Napoleonic Code unchanged, adapting it to local requirements, or maintaining the existing legal order. Risks associated with the implementation of the Code could include the vivid resistance of traditional elites, while the facilitation of legal and administrative unity, the stabilisation of the central government’s authority, and the importance of being seen as active supporter of Napoleon’s transformative project could represent important benefits. Such interest-based considerations can explain why the Code was only partially adopted, and especially in states whose territories and power structures had been thoroughly changed by processes of secularisation and mediatisation. Even after Napoleon’s defeat, liberal elites supported the continuous application in territories where a return to more ‘traditional’ law was attempted, including the Rhenish provinces that had been annexed by Prussia. This resulted in the Code’s continuous application—and even its ‘nationalisation’—well after the proclamation of the German Empire.

But another diffusion mechanism is key to understanding the lasting and subtler outcome of the Code’s diffusion in Germany. Even before the arrival of Napoleon’s armies, the Code was intensively debated among the epistemic community of legal scholars and government officials. A majority of scholars supported at least the introduction of localised versions of the code. Eminent experts not only published commentaries that were used for the interpretation of the Code even outside Germany but were prominently involved in the preparatory works for the introduction of the Code in states such as Baden, Nassau, and Bavaria.

These processes of communicative learning had a lasting impact on German legal debate. For some scholars, the Code subsequently became a role model for political unification through legal codification based on ‘enlightened’ standards and principles. The controversy between supporters and opponents of codification stimulated scholarly debate in the first years after Napoleon’s defeat, and later resulted in the emergence of the German Historical School. While the adherents of this paradigm initially rejected any attempts to organise organically grown legal traditions according to ‘rational’, top-down considerations, their study of the historical sources of the specificity of a German ‘national’ legal culture was instrumental in rediscovering the idea of codification as an instrument of national unity. Towards the end of the nineteenth century, the BGB can be seen as a late testimony to the continuous impact of the Napoleonic Code—less in its concrete provisions but in the general idea of bolstering a centralised nation-state via the support of liberal rule of law and the suppression of traditional privileges.

As a result, only by acknowledging the importance of communicative learning, facilitated by the continuous application, teaching and discussion of the Napoleonic Code, can the following appreciation be understood, voiced by the President of the Karlsruhe Court of Appeal (Baden) in 1902:

Although alien law to us with regard to its origin, it [the Napoleonic Code] was not perceived as such; for the CC [Code civil] contained besides great principles from a period of world history, which gave him a certain international importance, also elements of German law that enabled the code of law to become more and more integrated in our context, and to let us, for almost 100 years, enjoy the fruits of a uniform law that even large German states did not possess until the begin of the new century. (Boehmer, 1950, p. 298)

The following table summarises the results of this chapter according to the analytical categories presented in Chap. 2 (Table 4.2):

Table 4.2 Summary of the analysis of the diffusion of the Napoleonic Code
Full size table