France Sans Precedents

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Law of a particular nation should be determined by its national characteristics and must bear relation to the climate of each country, the quality of each soil, the situation and extent, the principal occupations of the natives and, above all, to the religion of the inhabitants, to their inclinations, riches, commerce, manners and customs.

—Montesquieu

Black shades or white shades in the Middle East, trying to eternalise alien elements of judicial precedents and unaccountable judiciary of feudal Britain and judicial review of America, may realise, nearly 75 per cent of the world population is free from those three vices. They also black out—their inspiring Britain has embargoed judicial review and controlled their home judiciary, even though they are still persisting in judicial precedents evolved in their feudal tradition. It may be noted that revolutions, both bourgeois and communist, emancipated peoples from reactionary laws and back-handed judiciary of Anglo-American concept. Anyhow Britain is also having the story of a counterfeit revolution, that is, the glorious revolution of 1688. It was a mere sabotage by which Protestantism got victory over Catholicism, far away from the material interests of the English public, starving and fallen. Thereafter Britain had not any throb of a revolution. It was the magic of Sonar Bangla.

But in France, like in all other European countries, poverty and insolvency of the Black Death of 1348 and its repeated haunting made the people rebellious. In addition, multifarious repressions carried out by the monarchy, theocracy and aristocracy aggravated their condition and the great political thinkers of France enlightened the people with revolutionary ideas. Thus the middle class and poor of France in 1789 started to wash out the tyrants in a blood-flood created by the march song, Marseillaise. “It is the baptism day of democracy, sick times have given its birth, unnumbered months being done. The extreme unction day of feudalism.”1

After much spasmodic destructions, inevitable pangs for a new social order, Napoleon, cruel like any other European, became the despotic ruler of France, and in 1800 he appointed committees to synthesise new laws for governance. He, described as the child of enlightenment as well as revolution, used hard common sense, mathe-matical logic and legislative vision; scrutinised the drafts of the committees and enforced five categorematic codes, namely, the criminal code, the criminal procedure code, the civil code, the civil procedure code, and the commercial code. These five codes were collectively called “The Code Napoleon, that elaborate system of juris-prudence, in the formation of which the Emperor laboured personally along with most eminent lawyers and enlightened men of the time, was a boon of inestimable value to France. I shall go down to posterity (said he, with Just Pride) with the code in my hand.”2

The Napoleonic code was the arithmetic sum of revolution and its philosophy; so it uprooted feudalism and devised a land tenure policy to secure equality to maximum possible extent. It abolished noble privileges, whereas the House of Lords is the inherent privilege of the peerage in British Parliament still. The Code Napoleon guaranteed civil liberty, equality before law, and freedom of opinion and expression. The French revolution was against sacerdotalism too; so the code abolished inquisition, tithe, and contrary to religious law, it allowed divorce on specific grounds. In addition, eclesiarch was democratised, insisting that Bishops are to be elected by the laities.

In social life, the code put an end to the hootchy-kootchy of licentious feminism, a by-product of Black Death to invigorate the sugar daddy; and it conveyed silently the command of Lord Jesus: “Women, likewise, be submissive to your husbands.” Thus wife became incompetent to acquire or dispose of property without the written consent of her husband and he, a father, also was powerful to punish his impish children. Moreover the father’s consent was necessary for the marriage of progenies, they had equal right on the father’s property and nobody could dispose more than half of his assets by means of will.

Interest in financial transaction was fixed by law, and civil law emphasised on the principle of conciliation before litigation but it was not the Anglo-American ADR.
The criminal code defined crimes clearly without sophistic phraseology which is profound in the Victorian Penal Code, 1860, enforced by unauthorised Britain in the Middle East, as a revenge for 1857. The Code Napoleon provided minimum and maximum punishment for every crime, whereas the vampiric Penal Code of Victoria provided only maximum period of imprisonment, even though it was enforced after 60 years of the Napoleonic Code. Victoria, in her Calvinistic Penal Code, did not spell willfully the minimum period of imprisonment, or minimum amount of fine, as well as the maximum amount of fine and she left all those for the emblements of her judges, the trashy lawyers of London. Instead of a single judge of lower rank deciding life or death of an accused in the feudal system as enforced by Victoria in non-feudal Asia, Napoleon enforced the jury system. The Code Napoleon was clear, brief and well defined, it precluded the growth of case law jungles; because any law intending to propel the society in a progressive direction cannot accept the backtracking principle of judicial precedent or judicial review.

Making use of the code, Napoleon maintained the rule of law in France, assured a peaceful life to people but he had endless imperial desires. He started to conquer European territories one after another, enforced the code on all countries like Germany and Italy he overpowered, and erased out feudalism from Europe. In the meantime, he planned to dispel Britain from the east in association with Tippu, the self-declared sultan of Mysore, who had a three-dimensional character. On one phase, he invaded surrounding territories, staged subhuman felonies, destructed temples and palaces, looted gold, silver and diamonds from everywhere. On the other was his superstitiousness, he blindly relied upon Hindu astrologers and sorcerers and paid them everything asked. On the third, he was a fanatic and forcibly Islamised thousands to destruct the longstanding Hindu-Muslim brotherhood of Malabar. Before moving the Napoleonic forces from Cairo to the east, Britain murdered the isolated Tippu and pillaged all loots heaped up in his palace. One armrest of his golden throne, evaluating millions, had been exposed at London for auction sale in 2008. It is unknown to the world how many tonnes of such eastern gold and how much measure of Golconda diamonds is hoarded in the democratic cellar of British justice still. If Tippu had a trace of intelligence enough to create a concord of neighbours, Napoleon would have expelled Britain from the Middle East. If it happened so, it may be assured that 1700 millions in the Middle East would have escaped from the octopodes of judicial precedent, uncontrolled judiciary and judicial review; colonialism is not less than slavocracy, admitted.

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AFTER enforcement of the Code Napoleon, France and all other European countries started to develop, and within a century they pushed back the bandit nation, Britain, in financial growth and intellectual output. During British plunder, started with the Battle of Plassy, bundles of inscribed copper plates had also been shipped to London. Owing to centum-satem relation of languages, romanticism established by Kalidasa in Meghadootam inspired English poets and they re-established it in the English language. After that the English literature could not stir up any literary movement; modernism, magical realism and post-modernism were evolved in the countries refreshed by the Code Napoleon, including Latin America. Not forgetting T.S. Eliot, who launched the spiritual missile ‘Om Shanti’ against Anglo-American cannibalism.

Similar is the case of science and technology too. The light of Vedic mathematics and science contained in copper plates, looted by Vasco da Gama while conducting comprehensive raids at Calicut in 1502, was finally available in Europe. The Europeans, ignorant of U.K.G. arithmetic till the Arabs taught it to them in the 14th century, developed wonders of calculus and macro physics, suddenly out of the copper plates. Thereafter in the 20th century, physics of the micro world formulated by Wolfgang Pauli (Pauli’s exclusion principle), Max Plank (quantum mechanics) Werner Heisenberg (uncertainty principle), Albert Einstien (theory of relativity) are the sole assets of Germany, modernised by the Code Napoleon. Thus the Napoleonic Code was not rejuvenating political structure alone, but it also illuminated the horizon of human knowledge and intellectual reproduction including Marxism.

The devotees of constitutional sanctity and ‘basic structure’ religionism of America do not remember that France since 1789 had eleven Constitutions and the inspiration for that dynamic constitutionalism was the nationalistic spirit and capitalistic refinement. In France, the parliamentary enactment is the only law and ultimate law. But in Britain and its intellectual colonies it is not the law but only a source of law. The other source is feudal precedents, which determine the direction and destiny of statutes and their omnipotent judges transubstantiate the parliamentary authority of the people to a political pasqinade. French statutes are the distillate laws on a particular subject and acquire their binding force through the authority of the legislature and executive. Judges in France have no authority to issue indirect whip to parliament to bake out a particular law, or they cannot make or amend or nullify any law which is an entertainment of judges in the intellectual colonies of Britain.

The principal quality of French law is its codified form having easy accessibility and uniformity; the importance of the case law there is only that of a Sunday school notebook. How-ever, no code can cover all eventualities responding to the changes or necessities arising in socio-economic situations, parliament makes new laws without fearing judicial-razing legislation and that is the only duty of the highly expensive parliament. Opposite to the clarity and brevity of French law, the laws in America, Britain and its intellectual colonies have spread in hundreds of volumes of law books and journals. And that sector is inflating like a growth industry to propagate regular effusion of equivocational judgments, and blind- folded Themis, a hallucination of primeval Greek rabbles, is always favouring lawyers having the forte to distort questions of law in the thunder and deluge of cloudy case laws. Thus the judges in the British system are diverging from the particular towards the general like a floating formicary, and the same highest court in that arrangement has no difficulty to pronounce opposite judgments on the same question of law at different times. Whereas judges in the French system converge from the general to a particular point and they have no freedom to disfigurate statutes.

Because the English system shows feudal anarchy, the French law represents capitalistic discipline. Moreover, French law is a product of national self-consciousness coinciding with all changes in economic and social standards. But in Britain, feudal conservatism is surviving powerfully due to the temporal lords and spiritual lords in parliament as a matter of their inherent right even in this 21st century. The first national assembly of France banned the judiciary from encroaching the premises of the legislature and administration; at the same time they have administrative courts to safeguard the rights and liberties of people from administrative arbitrariness.

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THE English and French systems differ most sharply in their methods applied to select judges. English judges are drawn from the bar, and usually lawyers of poor practice and income are getting ready to become a judge. But in France, a young man decides at the beginning of his career whether he will be a judge or a lawyer and throughout his life he continues on that line which he started with. To become a judge, a law graduate must pass the competitive examination for the entry to a training institute and she/he is bound to complete the three-year training satisfactorily. Upon entry to the training institute they become civil servants and are paid salary. They spend the first year in some parts of the judiciary and the second year in academic studies. Examinations conducted at the end of the second year determine the type of court to which each will be assigned to and in the third year they concentrate on that particular work. Germany is also following the same procedure for selection and training for judges, and they remain anonymous in judgment and announce “The Court” made such and such orders. A jury, say, the full bench, while arriving at a conclusion does not reveal the dissenting opinion among individual judges, if any, and thus the advertise-ment mania and personality cult of judges are being bulwarked by the people.

But in the intellectual colonies of Britain, judges are selected by judges, they determine their placement, pay, perquisites, promotion and pension; they intimidate with power politics, utter stinking comments for news-heroism; and the people’s sovereignty in Parliament remains as a poor scarecrow. Thus “It is sometimes said that in England and in America the Judge is king. We have seen that in some respects this assertion is valid. But in another sense a French or German Judge dominates proceedings and trials to a much greater extent than his Anglo-American brethren ever do. For, while the British and Americans look upon a law suit, and particularly a criminal trial, as a kind of duel in which the parties fight it out and the Judge himself is a mere umpire to uphold the rules of the game, in Germany as in France the Judge himself is entrusted with finding the truth and the parties, attorneys, and prosecutors simply aid in his investigation.”3

At the same time if an accused is sent for pre- trial detention, and if he is found innocent on trial and acquitted, he can claim compensation for his sufferings; so there, both judges and prosecution are very careful in detaining a person before trial. Whereas in the intellectual colonies of Britain, pre-trial conviction and jailing, the canonised judicial custody, is compulsory for the accused on ridiculous grounds which are repeating in all cases ritualistically. A low class judge in those colonies is empowered to leash any prey in jail without trial for decades or till the latter’s death, and without looking into the merit of the case. For this advance imprisonment for uncertain period, mere allegations of police, criminalised civil servants are enough, and at the same time their judicial preachers conduct mountain-sermon sanctimoniously that every-body is innocent before the law until the guilt is established on him legally.

Just opposite to this process, in the French system, a court officially conducts careful investigation before an accused is produced in a court of law and the police has no role in the prosecution. Since 1941 three judges and seven jurors were joined to a single body to determine the guilt or innocence in France. After 1959, the number of jurors has been raised to nine and there must be at least eight votes before a verdict of guilty is pronounced. In Germany, three judges and six assessors are acting together to judge cases in the trial court. But in intellectual colonies of Britain, one lowest judge, with all his subjective views and egos, is empowered to send a prey to the gallows, like a feudal lord in the English dark age.

However, the peoples of the Middle East may be proud of the great ancestor Raja Rammohun Roy, because France, Germany and almost all European countries have enforced his suggestions placed in front of the British parliamentary committee in 1831 as “Courts which have the disposal of life and death are undoubtedly of very high importance, and I would therefore propose instead of only one law assessor (who stands in place of a jury) that three or five (at least three) law assessors should be attached to each court, while trials are going on.”4

If the revolutionary ideas of Rammohun are brought to the notice of his successors, British minstrels among them may dispute that the proposed system is highly expensive. They may see that Rammohun had argued for a nationalistic system of law, elimination of judicial precedent and creation of a responsible judiciary, before the same committee in 1831. If all of his patriotic suggestions are enforced in this eleventh hour, millions of pending cases can be settled within a few years and a good number courts also can be wound up. Judges going to be supernumerary can be re-deployed in the jury system to save the treasury, much like in the French-German system and adopted by the modern world.

Lately, Anglo-American lawyers suffering much loss due to ADR injuries are trying to shift their practice to the Middle East. As the soul of law and judiciary is transatlantic feudality and that of judicial review is transpacific Americanism, they are eligible; more often they would be the best lawyers in the Middle East. In addition, if the time-worn symmetries of administration of puritanical justice at present are allowed to continue, transoceanic judges are better for the Middle East due to their umbilical relationship with the whole system.

REFERENCE

1. Thomas Carlyle: The French Revolution. A History.

2. John Gibson Lockart: The History of Napoleon Bonaparte.

3. Gwendolen M. Carter, John H. Herz. Major Foreign Powers.

4. Selected Works of Raja Rammohun Roy, Publications Division, Government of India.