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Written by: Joseph Comby
Organizations: Association pour contribuer à l’Amélioration de la Gouvernance de la Terre, de l’Eau et des Ressources naturelles (AGTER)
Type of document: Paper / Document for wide distribution
Comby, Joseph. Le droit de propriété, de la Déclaration des droits au Code civil [www.comby-foncier.com/]
A first version of this text was published in March 2004 in Etudes foncières on the occasion of the bicentenary of the Civil Code.
The « Civil Code » has treated the right to property in a strange way, raising it to the pinnacle only to empty it of its content.
On 30 Ventôse of the year 12, the first day of spring, the new ‘Civil Code’ was promulgated following a long period of work, since it had been fifteen years earlier, in the midst of the revolutionary turmoil, that the codification of the laws of the Republic had been decided.
Traditionally celebrated for its clarity, this legal monument was to officially become, three years later, as a result of the cult of personality, the Napoleonic Code and was to be imposed on many other European countries by the wagons of the Great Army.
In terms of content, many of the provisions of the 1804 Code were particularly retrograde (think in particular of those on the status of women, which today would be more reminiscent of extreme religious groups) but they have disappeared. But it is through the conciseness of its expression that the book remains globally exemplary.
In this respect, it stands in stark contrast to the jumble of previous legislation. Even if most of the legal concepts are taken from the old Coutume de Paris which, in the seventeenth century and especially in the eighteenth, had progressively imposed itself as the law of the whole country, everything is reconstructed in a rational order and according to a logic which aims to eliminate blind spots and half-tone formulations.
More absolute than absolute
Our current texts, cluttered with declarations of intent (always excellent) and decorative or moralising formulations, are, in this respect, an obvious regression compared to this two-century-old work.
However, one of the articles of 1804 is undoubtedly an exception, to the point of being a sort of anticipation of the legal confusion that has become common in our legislation. This exception is not insignificant, since it is Article 544 which is supposed to define the right of ownership.
What does this article say?
It consists of two sentences. The first begins by stating that ownership is « the right to enjoy and dispose of things in the most absolute manner…". This is already surprising. Logically, defining ownership as « the right to enjoy and dispose of things » would have been sufficient. This would have suited the precise and concise style for which the Civil Code is known. But here, the legislator sees fit to add a layer, by wanting this right to be ‘absolute’, no doubt to mean that it should not suffer any limitation, and even a second layer ('in the most absolute manner'), without bothering to check whether it can still make sense to have a right that is ‘more absolute’ than an ‘absolute right’. The lawyers who always quote this Article 544 with emotion in their pleadings do not care any more: we are no longer in law but in liturgy.
But, as everyone knows, since Mr Freud, an excessive reaffirmation usually conceals an unmentionable truth. This truth is stated in the second part of the sentence « … provided that it is not used in a manner prohibited by laws and regulations ».
This is a great fall from grace. After having raised the right of ownership to the pinnacle, we discover that it is in reality only the right to use things in the way that the regulations want them to be used. The second part of the sentence cancels out the first. In other words, the famous Article 544 is meaningless: it merely authorises everything that the regulations do not prohibit.
Ownership and resistance to oppression
The gap between the Declaration of Rights and the Civil Code is therefore considerable. It is the path that separates the Empire from the Revolution.
The Declaration, after having stated in its first article that « men are born and remain free and equal in rights », recognised, in the second article, four imprescriptible rights: « liberty, ownership, security and resistance to oppression ».
The fact that the revolutionaries of 1789 were able to combine the right to ownership and the right to resist oppression in this way is rather incomprehensible today, in a country where the right to ownership is taken for granted, and where the dominant conflict is only between the owner and the non-owner. But back then, the dominant conflict was between the owner and the those in power. The defence of ownership was then a struggle against arbitrariness… in much the same way as today in a number of countries in the South, where the struggle for land pits peasants against those with political power.
This article 2 of the Declaration has become so strange that it has been obscured by the collective memory, which prefers to remember the famous phrase that « ownership is an inviolable and sacred right ». This sentence does not appear in the text voted in 1789. It is a distortion of a sentence taken from the last article of the Declaration which institutes the right of expropriation.
Let us quote: « XVII. Since property rights1 are an inviolable and sacred right, no one may be deprived of it, except when public necessity2, legally established, obviously requires it, and under the condition of fair and prior compensation ».
For the revolutionaries of 1789, property rights were not at all the « right to enjoy » that it becomes in the Civil Code, and even less the right to enjoy in accordance with laws and regulations. It was the right to be free from the exactions of the powerful. A utopian aspiration: the landowner, sole master of his land, as of his little kingdom, to counterbalance the king of Versailles who would soon be deposed, a landowner who must even freely consent to taxation.
The Napoleonic concept “ownership” of March 1807 is the exact opposite. These contours were to be defined by state regulations and, at the same time as the figure of the landowner was almost sacred in relation to non-landowners, the exercise of his rights was placed under the supervision of the imperial administration.
The right to exercise a right
To this end, the Civil Code inaugurates a long series of semantic pirouettes that will be characteristic of many other texts that will subsequently deal with ownership. In the same way that Article 544 only acknowledges the absolutism of ownership, only to subordinate it immediately to present or future regulations, other laws will recognise that the subsoil certainly belongs to the owner of the soil … but that the exploitation of this subsoil is a prerogative of the State; that the right to hunt is indeed an attribute of land ownership … but that hunting is reserved for hunting societies authorised by the prefect; that the right to build is an integral part of land ownership but that the exercise of this right, beyond a certain ceiling, is the responsibility of the public authority, etc.
In short, since the Civil Code, the owner has all the rights, but he does not necessarily have the right to exercise his rights.
These contortions are the consequence of an erroneous conception of land property rights, which are assimilated to the ownership of a thing, whereas space is obviously not an object. Land ownership can therefore only be the ownership of a right over a space and this right, like all rights, is necessarily relative, in competition with other rights, starting with the right of the national community over its territory.
The right to property would therefore be stronger if its limits were recognised in order to define them precisely, rather than making it a quasi-deified absolute and then playing on words to empty it of its substance.
1 This plural (« les propriétés » in the original text in French) is explained by the fact that in 1789, there were still several types of property rights superimposed on each other: in particular peasants’ rights, la « propriété utile » and land rights of the feudal Lord, la « propriété directe ».
2 With regard to expropriation legislation, note the importance of the semantic shift between the ‘public necessity’ referred to in the Declaration of Rights and the ‘public utility’ of the Civil Code.
First translated with DeepL Free, then reviewed and verified by Niels Zwarteveen (AGTER) and Michel Merlet (AGTER)