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The Making of the French Civil Code: An Economic Interpretation

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 European Journal of Law and Economics, 14: 193–203, 2002


c 2002 Kluwer Academic Publishers. Manufactured in The Netherlands.

The Making of the French Civil Code:

An Economic Interpretation
JEAN-MICHEL JOSSELIN Jean-Michel.Josselin@univ-rennes1.fr
Université de Rennes and Centre National de la Recherche Scientifique (Crereg),
Faculté des sciences économiques, 7, place Hoche CS 86514, F-35065 Rennes cédex, France

ALAIN MARCIANO a marciano@yahoo.fr

Université de Reims-Champagne Ardenne, Faculté de sciences économiques et de gestion, 57 rue Pierre Talttinger,
51096 Reims Cedex, France—Institut d’Economie Publique and Centre National de la Recherche
Scientifique (Greqam)

Abstract

The code Napoleon has been one of the first (on such a scale), the most important and the most pervasive processes
of codification that ever took place. The purpose of our paper is to provide an economic analysis of the making of
this codification. We compare customary codification and contractual codification: while the former amounts to
the crystallisation of socially accepted practices, the latter consists in a creation of rules through a writing process.
These theoretical differences are less clear-cut when history mixes practices and reasoned arguments. We then
show that the making of the code Napoleon reflects it since it borrows from the social contract and the spontaneous
order traditions.

Keywords: codification, contractualism, spontaneous order, monopoly, competition, common knowledge

JEL Classification: D72, H11, K10, N41

1. Introduction

We typically are at a time when new institutions, and therefore new legal systems have to be
elaborated. The European integration process, transition in the former communist countries
and the evolution of the internet are as many instances of situations where harmonised legal
rules may be required. In this perspective, many are those who advocate the elaboration of
legal codes in each of these domains. For instance, Backhaus (2002) considers the necessity
of an administrative European code. Ioffe (1996) suggests that a commercial code is required
for Russia to improve the transition towards an ordered and more efficient society. Further,
codified legal rules may have to apply to the internet. With regard to a better understanding
of these problems, it is certainly of interest to turn to important past events that are likely to
provide insightful lessons. Such is the case with the code Napoleon, one of the first (on such
a scale), the most important and the most pervasive processes of codification that ever took
place. Its influence on the evolution of continental legal systems in Europe seems to prove
that the French attempt to build a harmonised system of rules was a success. The purpose
of our paper is to provide an economic interpretation of the making of this codification.
194 JOSSELIN AND MARCIANO

Broadly defined, a code is a set of written rules that are shared by different individuals.
But there are two ways of reaching a harmonised system of rules: rules can be selected
or created. On the one hand, selection means that the rules are discovered through a mar-
ket process; on the other hand, creation implies contractual codification. Hence the usual
opposition between the spontaneous order and the social contract traditions. While Hobbe-
sian constructivism rests on rational calculus, common law jurists like Coke rather develop
the evolutionist perspective of accumulated experience as the soundest possible basis for
efficient or right judgements. Common law advocates do not of course rely on Hobbe-
sian rational calculus to ground their position. The reference is rather that of the sponta-
neous order tradition, revived by the founding fathers of classical political economy during
the Scottish Enlightenment (Josselin and Marciano, 2001). This opposition is present in
Germany “the so-called codification dispute of 1814–1816” (Backhaus, 1999, p. 6) and it
may serve our purpose. The process of codification takes place in both cases, but a with a
quite different status however. Whereas the writing process is inherent to rational or social
contract codification, it mostly amounts to the crystallisation of socially accepted practices
in the case of spontaneous selection.
In theory, customary codification thus fundamentally differs from contractual codifica-
tion. However, things are less clear-cut when history mixes practices and reasoned argu-
ments. The making of the code Napoleon reflects it since it borrows from both traditions.
Indeed, even if theoretical arguments have grounded the willingness to elaborate a new
legal system, the process took place in a particular historical context, and the new code has
been built upon old structures. The main constraint that jurists have to face in writing the
civil code is that, before 1789, there is no French law as such. From an economic perspec-
tive, provision of law can be depicted by monopolistic competition: spatial and functional
monopolies compete on the market for law. All over France, the territoriality principle
rules the feudal system, which breeds over sixty legal regions. This is the first aspect of
monopolistic competition. Spatial monopolies get their share of the territory, with courts of
regional law providing justice as a local public good and justice decisions as private goods
under imperfect competition. There are other suppliers on the market for law. Canon law
is provided and interpreted by ecclesiastical courts. It often covers a larger spectrum than
just religious affairs. The king’s law is supposed to deal with the affairs of the nobility,
but from the 17th century it extends to civil and criminal procedure. The King’s law is
expressed through the Parlement and its branches in the provinces from the 14th century.
All these functional monopolies try to expand their market shares over the feudal courts of
regional law. If we add to them the customary but strictly codified rules governing town
corporations, the landscape of law before the Revolution is both diverse and imperfectly
competitive.
There nevertheless remains a fundamental difference in civil law between the north and
the south since the sources are significantly distinct. Sources of the law before the code
are both customary and contractual. The south is mainly under the influence of Roman law
and its personality principle. Contract law is well developed. The north is dominated by
the Germanic tribal customs. The Revolution provides a decisive step towards a monopoly
that will not be built on a tabula rasa. Indeed, though being a constructivist, Cartesian and
rationalist attempt to create a new legal system, the elaboration of the code Napoleon really
THE MAKING OF THE FRENCH CIVIL CODE 195

tries to harmonise those two traditions. The civil code has been drafted in four months
under the close scrutiny of Napoleon himself, by Tronchet, Bigot (northern jurists from the
Tribunal de Cassation) and by Maleville and Portalis (southern jurists, the first from the
Tribunal de Cassation, the second from the maritime courts). The analysis of the making
of the French civil code thus implies providing an economic rationale for the necessity to
mix these two traditions, as it has been done at the beginning of the 19th century by the
authors of the code. Though customary codification inherited from the north (Section 2)
did keep a significant place in the civil code, contractual codification was necessary to
produce a rational framework for civil law (Section 3). The last section will sum up this
argumentation.

2. The northern tradition of customary codification

The making of the French civil code is influenced by the judicial tradition of the northern
part of France, where regional courts usually follow the Germanic tribal customs. The im-
portance of the customary tradition in the north can also be acknowledged by the fact that
“common law” has its origins in the old French expression “commune ley”, which was to
be imported in England by William the Conqueror. In this section, we analyze the virtues of
spontaneous order, and the conditions under which customs are likely to emerge. It appears
that the competitive mechanism and market forces that make the emergence of customs pos-
sible is a typically Wicksellian process: repeated interactions generate unanimity. However,
a prerequisite for efficiency is a social environment where market forces and individual
willingness to co-operate (Section 2.1) breed customary norms (Section 2.2). Codification
is only the next step of the process, for it solely concerns already existing rules. An his-
torical illustration of customary codification is given by the record of the customs of Paris
(1510). Therefore, from the perspective of the spontaneous order tradition, codification is
only considered as the reification of customary rules, their transformation into legal and
codified rules (Section 2.3).

2.1. A competitive market framework for repeated interactions

The spontaneous order process has been analysed from the positive perspective of the
description of some particular types of societies or practices. Primitive (Benson, 1991;
Landa, 1981, 1983) or medieval societies (Greif, 1989; Milgrom, North, and Weingast,
1990; Greif, Milgrom, and Weingast, 1994) provide evidence that help understand how
rules emerge. International trade is also frequently quoted as a case of spontaneous process
(Benson, 1998a, 1998b). In these different situations, what is stressed is that customary law
formation can be “analogised to a decentralised decision making process” (Parisi, 1999,
p. 611) which is based on reciprocity (Ogus, 1999; Fehr and Gächter, 2000). Parisi considers
that “in both ancient law and modern international law, the principle of reciprocity serves
as a crucial pillar for the process of law formation” (1998, p. 575).
But why will individuals initiate interactions in this decentralised context? Recognition
and compliance with rules are usually unlikely if individuals engage themselves in dis-
crete interactions like one-shot games. The players must be assumed to display a certain
196 JOSSELIN AND MARCIANO

willingness to co-operate. Justifications for such an assumption are diverse. As we have

suggested it (Josselin and Marciano, 1999a), sympathy is one of the sources of spontaneous
co-operation. The decentralised process through which customs are formed works like a
market process. More precisely, “in a law and economics perspective, customary law can
be viewed as a process for generating legal rules that is analogous to a price mechanism in
a partial equilibrium framework” (Parisi, 1998, p. 572). However, the assumption that the
players display a willingness to co-operate, in contrast to what is usually assumed to hap-
pen on the market, clearly indicates that interactions do not take place in an environment of
conflict that could be represented by a prisoners’ dilemma, but rather take the form of a co-
ordination game. Therefore, the situation of reference for understanding the emergence of
customary rules is not that of the “war against all” that Hobbes viewed as the manifestation
of the state of nature, but that of a Humean, peaceful and already structured society. This
emergence of behavioural norms and property rights is set through repeated and multiparty
interactions (Benson, 1999, p. 138).
Therefore, the repetition of interactions between individuals is only a sufficient condition
for the emergence of regularities in behaviours and subsequently that of customs. The
necessary condition is that of the a priori existence of reciprocity. Individuals engage in
repeated interactions because they anticipate the repetition of interactions and, furthermore,
they engage in repeated interactions because they ex ante display some willingness to co-
operate. It is thus a major assumption put forward by the defenders of the spontaneous
order tradition, that the willingness to engage in repeated interactions is a prerequisite for
the emergence of customary rules.

2.2. Repeated interactions and the emergence of customs

In order to understand how rules emerge and spread among individuals, and to discuss the
characteristics of these rules, one has to refer to the way individuals are supposed to acquire
knowledge and to the way human mind works. If the human mind is assumed to work on
an associative basis—an assumption that is explicitly adopted by Hayek (1952) and that
can indeed be traced back to the Scottish Enlightenment—then it perceives the environment
through impressions it receives. As Hume puts it, “for any part, when I enter most intimately
into what I call myself, I always stumble on some particular perception or another, of
heat or cold, light or shade, love or hatred, pain or pleasure. I can never catch myself
without a perception” (1739–40 [1992], p. 235). Knowledge is viewed as the result of the
accumulation and association of impressions and men are shaped by what they experience.
Of course, since the scope of individual experience is necessarily limited, induction plays a
major role in the accumulation of knowledge by requiring participation in different repeated
interactions.
In this process, no formal or explicit communication between the players is required
insofar as human actions produce their own co-ordination. Co-ordination of actions, with-
out reference to intentions, is a sufficient condition for successful communication. On the
other hand, observing behaviours during the different stages of the game reveals infor-
mation. Therefore, repeated interactions and frequent non-formal communication between
players lead to “socially shared interpretation patterns and frames as well as common tacit
THE MAKING OF THE FRENCH CIVIL CODE 197

knowledge of facts, hypotheses, practices and skills” (Witt, 1999, p. 102). These models
of behaviour (Witt, 1998) are as many “grammatical rules” (Pinker, 1994; Crawford and
Ostrom, 1995) aimed at solving co-ordination problems.
From this perspective, Vanberg (1989) rightly insists on the unintended nature of conven-
tions: customs are built spontaneously, without anyone deciding explicitly to create them.
They emerge from unorganised interactions when a regularity of behaviour among a fixed
number of players occurs in a recurrent situation and they form common knowledge rules
(Josselin and Marciano, 1995). Customs will not be challenged by players and therefore,
“there is no need for law or norm enforcement in an environment characterised by per-
fect incentive alignment” (Parisi, 1999, p. 106). This “exercise of direct legislation by the
members of society” (Parisi, 1998, p. 572) defines the domain—geographical as well as
psychological—of validity of the custom, that is to say, the groups in which they are accepted
and the situations in which they are relevant. The next part of our discussion will consist
in analysing the process through which these customary, emerging rules are likely to be
codified.

2.3. Codification of customs

Once customs have been established, they can become codified. Indeed, “some formalisation
may occur. Perhaps some of the rules will even be written down as ‘law’ codes or precedents”
(Benson, 1999, p. 143). Codification is solely needed when there exist unsettled conflicts.
Violent conflict resolution may indeed have significant costs, for instance when new players
enter the game. The intervention of a third party enforcer, namely a judge, is then a likely
solution.
Which role is a judge expected to play in the codification process? Customary codification
can be defined as “an effort to clarify unarticulated custom in order to better facilitate co-
ordination within a group” (Benson, 2000, p. 17). However, the use of codification, when it
is equated with formalisation or clarification, is somewhat an abus de langage. Indeed, in
this respect, even if the process implies to write down customs, there is no real codification
process but solely the transformation of already existing norms (“unarticulated customs”)
into legal, and thus labelled as codified, rules. In other words, it is impossible to distinguish
between de jure and de facto rules (Hayek, 1978, p. 76: customs emerge de facto) and may
become codified (de jure) legal norms afterwards.
To consider that codification solely amounts to clarification clearly indicates that the role
of the judges is obviously not that of having the responsibility, even less the capacity to
create rules (Parisi, 1998). Judges only act as arbitrators solely granted with the task of
discovering rules through individuals’ actions. Obviously, the judge cannot rely upon an
effectively infinite knowledge of human behaviours and cannot pride himself to be a central
planner. The required knowledge to select the best rules and, after that, to evaluate the
consequences of his choices, exceed his capacities. What is identified as the major ability
of judges is their experience and their ability to refer to what was previously done in the
same kind of circumstances. The judge should rely on prevailing customs and progressively
amend practices. The position has been defended since the very origins of the spontaneous
order tradition by jurists like Sir Matthew Hale or Sir Edmund Coke. For instance, Hale
198 JOSSELIN AND MARCIANO

prefers to use “a Lawe by which a Kingdome hath been happily governed four or five
hundred years than to adventure the happiness and Peace of a Kingdome upon some new
Theory on my owne” (quoted by Barry, 1982, pp. 15–16). At the same time, since no one can
behave as a central planner, the rule of precedent will carry out this task. The importance
of the stare decisis principle provides a clear illustration of the role of precedent in the
decisions taken by judges in a case of litigation. Every codification decision belongs to the
tradition, confirms it and reinforces it.
As an arbitrator, the judge therefore does not stand in the position of a monopolist,
a central authority benefiting from coercive powers in the provision of law. In such an
‘institutional’ framework, one cannot clearly identify a genuine delegation process, and the
related agency relationship, through which judges would become the agents in charge of
law provision. The judge is the agent of the impartial spectator of the common law, in the
sense given by Smith (1759 [1984]) and Hume (1739–40 [1992]). In a process of customary
codification, no one is explicitly in a monopoly position, that is to say capable of controlling
the provision of law.
There are however limits to customary codification that will justify considering the al-
ternative of contract codification. It is upon the advantages of contractual codification, but
also taking into account the existing customs, that the French civil code is elaborated.

3. The code Napoleon: Customary and contractual codification at work

Codification cannot simply rule out customary norms and do as if it were building law from
a tabula rasa. Nevertheless, as customs are mainly local public goods, their harmonisation
is far from straightforward (Section 3.1). Hence the requirement of contractual codification.
Since the French system comprehends a strong tradition of Roman contract law and a well
established customary property law, the code Napoleon will build on both (Section 3.2).

3.1. Social contract codification and the creation of rules

The making of the French civil code has its roots in a tradition of contractual codification,
which was that of the southern part of France. This part of France uses contractual codifica-
tion because of the great influence of Roman law. Common knowledge of law is explicitly
stated by the Lex Romana Wisigothorum (506). There are imports as well, as is shown by
the increasing use of the Corpus Juris of Justinius the Bizantine (6th century) from the
12th century. Contractual codification is then well developed and it soon begins exporting
to the north. There are indeed imports of Roman law in the northern customary system,
mainly in contract law. It is not only because of its constructivist strength but also because of
its comparative advantage over customary codification that contractual codification finally
succeeds in establishing a set of common harmonized legal rules. In particular, the major
problem of customary law is that it is a club good. Competing groups can be represented as
homogeneous clubs since the rules of actions and the patterns of behaviour are shared by
individuals who have the same willingness to co-operate and who have participated in the
same interactions. This “local conformity effect” can be compared to the “global diversity
effect”, which tells us that “there is a positive probability that [several communities that do
THE MAKING OF THE FRENCH CIVIL CODE 199

not interact with one another] will be using different conventions” (Peyton Young, 1996,
p. 112). Therefore, the harmonisation of customs must be analysed as a problem of inter-
actions that take place between members of different clubs, each one following a different
rule. Codified customs are local public goods and their domain of application is largely
restricted to the club in which they emerged. From this perspective, the probable tensions
between the different local (be they regional or national) traditions could be an obstacle to
the spontaneous harmonisation of law. This somewhat begs the question of the capacity of
customs to perform the other functions of law as a public good.
As we have shown previously, customs develop and spread in a co-operative environment
because knowledge is assumed to be acquired through participation in interaction. It is a
process of inductive accumulation of knowledge. Thus, a new player entering the game will
have to participate in interactions with members of the group in order to become familiar
with the different local customs. Put it the other way round, it means that a new player
entering the game may face induction problems because he is unable to positively know the
meaning some other person gives to the rules or to infer this meaning from the observation
of her behaviour (Josselin and Marciano, 1995). The costs of acquisition of information
through participation, when players of different groups are involved, are thus very high.
Here, the problem faced by customary codification is that of the publicity of law beyond
the limits of the group. Hobbes proposes a contractual solution to the problem of induction:
the sovereign power makes law as a national public good and at the same time is the judge.
In this perspective, contractual codification solves the problem of induction in that law is
publicly and explicitly declared to the people (Hobbes, 1966).
A second type of problem concerns variations in players’ willingness to co-operate. Free-
riding and opportunistic behaviours may be an increasing function of the size of the group.
Large groups are assumed to promote efficiency in allowing more specialised production
activities and hence increasing returns. However, as group size expands, transaction costs
and control costs increase in a non-linear manner, perhaps offsetting the advantages of a
larger group. The greater the number of individuals involved, the more difficult it is to know
the rules they follow, insofar as it requires an ever greater number of experiences, and the
more difficult it is to check that they respect the rules. Therefore, within larger groups, co-
operative behaviours tend to disappear, being replaced by free-riding. A ‘constitutional’ use
of the model proposed by Hotelling (1929) explains how distance to the local public good
influences the legal strength of the rule (Blum and Dudley, 1991; Josselin and Marciano,
1999b). Thus, “within a broader social setting decentralised law making encounters the
problem that some individuals will tend to free-ride on the enforcement of others” (Ogus,
1999, p. 589). In this environment, non co-operative behaviours can emerge and persist,
whether or not the game is repeated (Witt, 1989).
Codification of customs is not always a sufficient and efficient way of establishing com-
mon and harmonised rules One has to go one step further, and move towards social contract
codification. Not only clarification or formalisation of customs are required, but also that
“the local customs can no longer be regarded as the only or main source of the law”
(Backhaus, 1999, p. 7). In contrast wit a spontaneous process, based on the very simple idea
that you seldom contract from a tabula rasa, social contract codification, understood as the
creation and publicising of law by a sovereign power, is required to provide law as a public
200 JOSSELIN AND MARCIANO

good. The process of contractual codification can be considered as the explicit creation of
common knowledge, through the creation of rules.

3.2. The need for contract in the codification process

In practice, unification of civil law, and hence monopolization, has been slow. The univer-
sity of Paris is allowed to teach Roman law only in 1679. Nevertheless, standardization
progressively replaces product diversity. This process gathers momentum with the Revo-
lution. From 1789 until 1804, the droit intermédiaire intends to build a new system of law
that would uniformly apply to the whole of France, both geographically and functionally.
The process fails. However, from that period onwards, the state becomes the only source
of law. Emanating from the social contract, law becomes une affaire d’État which implies
that corporations, feudal powers and regional courts be abolished. As a result, one might
say, the civil code of 1804, through which a civil law applying to the French empire is
created.
A traditional argument against social contract codification relates to the fact that the mo-
nopolist provider of law is expected to adopt strategic behaviours. Influenced by interests
groups, he is likely to use power to promote private interests. The presence of a Leviathan
(Brennan and Buchanan, 1985; Oates, 1985; Josselin and Marciano, 1997) threatens the
rightness and the efficiency of public decisions and questions the legitimacy of law. On
the contrary, customary codification is assumed to avoid unjustified, inefficient and unjust
wealth transfers. It is standard argumentation in economic analysis to affirm that decen-
tralised market processes perform better than centralised allocative mechanisms in terms of
Paretian efficiency. What is undoubtedly true for many activities may not necessarily cover
all the dimensions of the market for law.
Firstly, as far as rightness is concerned, one has to wonder whether spontaneous order
selects better rules than a contractual process. The emergence of norms is assumed to result
from cultural selection, which is according to Hayek of the very same nature as natural
selection. However, Hayek himself suggests that “evolution cannot be just” (1988, p. 20)
in the sense that rightness is extraneous to what is an evolutionary process rather than
a constructed allocation. Secondly, the natural selection mechanism is also assumed to
promote economic efficiency (Rubin, 1987; Priest, 1987). However, one cannot have any
certainty as to both the efficiency and rightness of the selected rules. This has been formalised
by path-dependence models: “economic models of cascade or bandwagon behaviour have
shown how inferior paths can be followed by individuals who rely on previous choices
undertaken by other subjects” (Parisi, 1999, pp. 613–614). Among others, Brennan and
Buchanan remark that “social conventions that emerge historically and take on the status
of ‘unwritten rule’ do not necessarily produce the best conceivable pattern of outcomes.
Some modern social analysts (notably Hayek and his followers) display an apparent faith
in the forces of social and cultural ‘evolution’ to generate efficient rules. There seems to
be no reason to predict that these forces will always ensure the selection of the best rules”
(1985, pp. 9–10). Nozick points out that chance can be a means of selecting a rule (1974,
Ch. 6). Furthermore, once selected, “wrong beliefs may become stable and widespread in
any community of imperfect decision makers” (Parisi, 1999, p. 614). All this argumentation
THE MAKING OF THE FRENCH CIVIL CODE 201

simply amounts to the fact that “evolution is not an optimiser” (Hodgson, 1993).1 In this
context, social contract codification is obviously required.
Contractual codification nevertheless cannot ignore customs as a basis for codification.
Constructivism must at the same get along with pragmatism, thereby implying a reference to
existing customs. By paying attention to social norms, it may avoid externally imposed rules
that could crowd out co-operative behaviours endogenous to the customary setting (Frey,
1994, 1997). However, the major problem is that customary codification does not involve
discussion and communication. Customs and social norms should be discussed as alternative
options, among many others. Of course, it does not mean that the legislator is a dictator.
The constitutional contract strictly determines his prerogatives, at least in theory. Society
would then be regulated by a public conception of justice.2 The subsequent principles would
have to be common knowledge propositions. Now, although we all have a conception of
justice, it will probably not be sufficient to spontaneously generate common principles.
These must be set up within a contract. It will ensure that this formalised covenant will
help co-ordinate individual activities towards a common goal, and enforce compliance with
the rules. In this context, the government cannot be unjust to its citizens, since they have
explicitly authorised his actions by a political covenant. This provides a strong rationale
for attempts to derive constitutionally designed rules for Leviathan’s behaviour. At the
same time, it does not prevent comprehending in the contract a number of customary rules
that will have been discussed and accepted not because they are customs but because they
fit into the contractual setting. In this respect, the Code Napoleon may be exemplary in
that it mixes customary and contractual considerations. The code indeed heavily draws on
previous and pre revolutionary works by Domat (civil law in natural order) and Pothier
(general principles of l’ancien droit). Domat and Pothier had remarkably surveyed and
formalized the pre revolutionary system of law, hence the continuity from the old regime
to the new one. Codified customs in the field of property law are largely maintained while
contract law still heavily rests on Roman law. What is outstanding in this process is both
this continuity and the new role of the state in the control of law provision. Monopolization
is achieved but without breaking down the old pillars of Germanic customs and Roman
contracts.

4. Conclusion

In this paper, our aim was to compare two types of codification and to assess their respective
influence in the making of the Code Napoleon. Thus, we have distinguished customary
codification, a process which consists in transforming (clarifying or formalising) already
existing norms into codified rules, from contractual codification, that is to say the process
of rationally creating new legal rules. Of course, the two mechanisms are not totally distinct
and opposed. However, and it has been our ambition in this paper, the spontaneous order
process through which customs are reified into legal codified rules cannot be considered
self-sufficient. Even if it is partially based on discussed customs, codification needs to be
contractual. The limits of customary codification do require a contractual process. In this
perspective, the Code Napoleon could be regarded as a benchmark in contractual codification
and in the monopolisation of law.3
202 JOSSELIN AND MARCIANO

Acknowledgments

A first version of this paper has been presented during the “Code Napoleon Seminar”, held
in Erfurt, 10 April 2001. We thank the participants to the seminar and a referee of the
Journal for their valuable comments.

Notes

1. Problems come from lock-in effects, inertia and path-dependence (see Harnay’s paper in the same issue).
2. Napoleon could have said that!
3. As was suggested by Frank Stephen during the symposium, this monopoly hypothesis raises the questions of
how you reach monopoly, and which monopoly you reach. Civil law achieved it in France and elsewhere, but
in England it was the common law. There remains to study the compared efficiency and fairness of the two
processes, and of the final outcomes reached.

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