The Droit Intermédiaire: Revolutionary Law Between the Ancien Régime and the Napoleonic Code

Defining the Droit Intermédiaire

The droit intermédiaire designates the body of law enacted in France between the meeting of the Estates-General in 1789 and the promulgation of the Napoleonic Code in 1804. This fifteen-year period witnessed the most radical legal transformation in French history: the complete dismantling of the institutions and principles of the ancien régime and their replacement with a new legal order founded on the principles of 1789. The droit intermédiaire was not a coherent system but a series of experimental, often contradictory legislative acts produced by the successive revolutionary assemblies: the National Constituent Assembly (1789–1791), the Legislative Assembly (1791–1792), the National Convention (1792–1795), and the Directory (1795–1799). The Napoleonic Code that followed drew selectively from the droit intermédiaire, preserving some revolutionary innovations, modifying others, and rejecting the most radical experiments.

The term “intermediate” should not suggest impermanence. Many institutions of the droit intermédiaire proved lasting, and the principles established during this period—equality before the law, the abolition of feudalism, the secularisation of law—permanently transformed the French legal order. The code Napoleon did not supersede the droit intermédiaire so much as select from it, consolidating some revolutionary gains while reversing others.

Abolition of Ancien Régime Legal Institutions

The Revolution’s legal programme began with the systematic destruction of ancien régime institutions. The parlements, the thirteen sovereign courts that had exercised both judicial and political authority, were abolished by the law of September 6–11, 1790. The parlements had been centres of opposition to royal reform as well as defenders of aristocratic privilege, and the revolutionaries saw them as incompatible with the principle of separation of powers and the sovereignty of the nation. Their abolition removed the institutional framework of the old judicial order and created the space for an entirely new judicial structure.

The seigneurial courts, which had exercised jurisdiction over rural disputes under the authority of local nobles, were abolished alongside the feudal regime itself. These courts had been instruments of aristocratic power, and their abolition was a central demand of the peasantry. The system of purchased judicial offices (vénalité des offices) was also abolished. Under the ancien régime, judicial offices had been bought and sold as private property, and judges owned their offices as inheritable assets. The Revolution replaced this system with the principle that judges should be elected and that judicial office was a public function, not a form of property. The venality of office had been one of the most criticised features of the ancien régime, and its abolition was a fundamental reform that transformed the nature of judicial authority.

Reorganisation of the Judiciary

The Revolution created an entirely new judicial hierarchy. At the base were the justices of the peace (juges de paix), established in 1790 for each canton. The juge de paix was an elective official with jurisdiction over minor civil disputes, empowered to conciliate before adjudicating. The institution was a genuine revolutionary innovation, designed to provide accessible and informal justice at the local level. The juge de paix was not required to have legal training; the position was conceived as a lay magistracy that would resolve disputes through common sense and conciliation. The institution survived the Revolution and persisted until 1958, when it was replaced by the tribunal d’instance.

At the intermediate level, the district courts (tribunaux de district, later tribunaux de première instance) exercised general civil jurisdiction. Criminal jurisdiction was reorganised through the establishment of the tribunal correctionnel for less serious offences and the cour d’assises for serious crimes. The public prosecutor (ministère public) was established as a separate institution responsible for the initiation and conduct of criminal prosecutions.

The most significant institutional innovation was the Tribunal de Cassation (1790), the ancestor of the modern Cour de Cassation. The Tribunal was charged with ensuring the uniform application of law throughout France by quashing judgments that violated the text of the law. It was explicitly denied the power to substitute its own judgment for that of the lower courts; its function was limited to annulment and remand. The revolutionary conception of cassation reflected the principle of legislative supremacy: the Tribunal’s role was to enforce the will of the legislature against judicial deviation. The Tribunal de Cassation represented a fundamentally different conception of judicial review from the American model; it was a mechanism for enforcing legislative supremacy rather than for enforcing constitutional limits on government power.

Elective Judges and Lay Participation

The Revolution introduced the principle of judicial election. Judges at all levels were elected by the people for fixed terms, replacing the venal and hereditary magistrates of the ancien régime. The Assemblée Constituante declared that judges should be elected because “the people should choose those who judge them.” The revolutionary commitment to judicial election reflected both hostility toward the old judicial aristocracy and faith in popular sovereignty.

The jury system was introduced in criminal cases, another import from English practice that was transformed in its French application. The jury d’accusation determined whether there was sufficient evidence to proceed to trial; the jury de jugement determined guilt or innocence. The revolutionary jury was a direct expression of popular sovereignty in the administration of justice. The jury was restricted to criminal cases; the Revolution rejected the English model of the civil jury.

The elected judiciary proved unstable. The politicisation of judicial elections and the short terms of office undermined judicial independence and professional competence. The process of destitution—the removal of judges deemed insufficiently revolutionary—was practised extensively during the Terror. The Napoleonic reforms would reverse the elective principle, establishing a professional judiciary appointed by the executive, with guarantees of tenure that restored judicial independence while subordinating the judiciary to state authority.

Secularisation of Law

The droit intermédiaire secularised French law fundamentally and permanently. The Revolution abolished the legal authority of the Catholic Church and transferred the registration of births, marriages, and deaths from the parish to the municipality. The law of 20 September 1792 established civil marriage as the only legally recognised form of marriage, requiring couples to appear before a municipal officer. Religious marriage was permitted but had no legal effect unless preceded by civil marriage. This separation of civil and religious marriage remains a fundamental principle of French law.

The same law introduced divorce, which had been unknown in French law since the revocation of the Edict of Nantes (1685) had ended toleration of Protestant marriages. The revolutionary divorce law of 1792 was extraordinarily liberal: divorce could be obtained by mutual consent, on grounds including incompatibility of temperament, and even on the application of one spouse alone for “incompatibility of humour.” The law of 1793 made divorce even more accessible. Approximately 30,000 divorces were granted in France between 1792 and 1803, concentrated in the cities and among the middle classes. The Napoleonic Code retained divorce but made it substantially more difficult to obtain, requiring specific grounds (adultery, cruelty, condemnation to infamous punishment) and restricting mutual consent.

The law of succession was radically reformed. Primogeniture—the right of the eldest son to inherit the family property—was abolished. The revolutionary law of 1790 established equal inheritance among all children, male and female, as a matter of public order. The principle of forced heirship (réserve héréditaire) was established, preventing a parent from disinheriting children. These reforms reflected the revolutionary commitment to equality and the abolition of aristocratic privilege, and they permanently transformed French family law. The Napoleonic Code preserved the principle of equal inheritance among children, though with greater testamentary freedom than the revolutionary legislation had allowed.

The Code Napoleon: Preservation, Modification, and Rejection

The relationship between the droit intermédiaire and the Napoleonic Code was selective and pragmatic. The Code preserved the core revolutionary principles that had become irreversible: equality before the law, the abolition of feudalism, civil marriage, divorce, the secularisation of law, and the abolition of the venality of office. The Code’s first article provided that the laws of the droit intermédiaire remained in force insofar as they were not abrogated by the Code, and the Napoleonic legislation explicitly confirmed many revolutionary statutes.

The Code modified revolutionary innovations that had proved unstable or excessive. The elective judiciary was replaced by a professional, appointed judiciary with security of tenure. The revolutionary divorce law was restricted. The husband’s authority in the family was reinforced through the principle of puissance maritale (marital power), requiring wives to obey their husbands and denying married women legal capacity in many matters. The father’s authority over children was strengthened through the restoration of certain forms of paternal power.

The Code rejected revolutionary innovations that had been products of the Terror. The progressive taxation of the Directory was abandoned. The revolutionary calendar and the cult of reason were repudiated. The principle of judicial election was replaced by professional appointment. The revolutionary enthusiasm for codification was fulfilled but on terms that stabilised rather than perpetuated the revolutionary dynamic.

The droit intermédiaire’s most radical experiments—the revolutionary tribunals, the Law of Suspects, the democratic jury—were transient. But its structural reforms—the administrative departmentalisation of France, the unified judicial hierarchy, the civil marriage and divorce, the equal inheritance, the principle of free access to the courts—became permanent features of French law. The droit intermédiaire established the legal framework of modern France, and the Napoleonic Code, for all its authority, was less a new beginning than a consolidation and moderation of the revolutionary transformation. The intermediate law was not merely a preparation for the Code; it was the foundation upon which the Code was built.