Site destiné à information et action pour la protection des personnes dites "trans". Site destined for information and action in the protection of transgender people
19 Juillet 2015
Like Alice in Wonderland falling through the rabbit hole, foreigners can often be baffled by the peculiarly French system of vital records, or "état civil" (civil status) - birth, marriage, death certificates. More than a simple registry, it is a unique and elaborate system of governance of society, and provides insights not only into the relative instability of the country, but also into the relation between the individual and the State, which contrasts sharply with the English and the US tradition of personal freedom and responsibility. Napoleon, the Red Queen of this wonderland, is alive and well and living in the heart of the French Republic.
"Etat civil" 101: Curiouser and curiouser
First, "civil status" - unlike vital records - is a catchall concept, covering anything that could affect your relation to the "rights and freedoms of others": who you are, who you are married to, your children, your citizenship status, etc. Because it is so wide, it covers most of the major details of everyone's personal life.
Second, the documents are by nature public and they are cross-referenced between each other. Anyone can get an "extract" of your birth certificate, which also will say if you have been married and to whom, if you're divorced, if you're legally separated, if you've acquired French citizenship or anything else related to your "civil status". The "full copy" has much more detailed information - access is more restricted, but significantly broader than would be allowed in the US.
Third, a direct heritage from Napoleon, is that vital records are considered as a major part of maintaining "public order", and the Government has the last word - either directly or through the right to intervene - in any change. For this reason, the vital records system is under the ultimate authority of the Ministry of Justice and not the Health Ministry, as it is in most countries, also making it extremely rigid.
André-François Miot de Mélito, a member of Napoleon's Council of State, said in the early 1800s, in the introduction to the law on changing last names (11 Germinal An XI - April 1st 1803): "Who could be more capable than the Government of judging the validity of the motives for requesting such changes? And who could be better positioned than the government itself, which, because of its position at the apex of the Administration, is alone in its capacity to understand and decide between a reasonable request and a whim ("caprice")?" (1) "Caprice" is generally reserved for children. The same principle of the importance of the State in deciding on behalf of irresponsible "citizen children" is the foundation of the entire civil code.
The DA, or public prosecutor - the same ones involved in criminal cases - or the Ministry of Justice are party to any change to birth records, and have the right to intervene in marriages, paternity proceedings and the like. Authorization has to be granted by decree by the Ministry of the Interior to give up French citizenship - people are not considered responsible enough to make that kind of decision themselves.
Up until around a decade ago, parents couldn't freely choose the names of their children - they had to choose from a (long) list of first names decided by the government. Parents weren't considered responsible enough to make that kind of decision in the best interests of their children. Even today, the DA can petition the courts directly if he or she doesn't like the first name chosen for a child.
A system of governance (and job protection for life)
The French tried the English system of letting people use any name they want as long as it is not used for fraudulent purposes, during the Revolution, inaugurating it by decree (24 Brumaire An II - November 14, 1793) a couple of months before slavery was abolished on February 4, 1794 (16 pluviôse An II). Nine months later, after the fall of Robespierre, the Directoire abolished this principle of personal freedom by decree (2 Fructidor An II - August 23, 1794). Resistance to this latter decree was extremely pronounced, lasting for several years. The civil code, under Napoleon and his ministers, officialized this suspicion of the capacity of people to make personal decisions without government intervention, whether through the multiple articles of the Civil Code, the law of 11 Germinal An XI or the opinion of the Council of State on January 3, 1802 (13 nivôse An X) which warns of a social apocalypse if the State does not control civil status changes (2). Not entirely unrelated to this context of suppression of personal freedom, Napoleon reestablished slavery on May 20, 1802 (30 floréal An X), leading to the loss of Haiti.
Related to this, article 16 of the Civil Code created the principle that your body does not belong to you - a lasting vestige of pre-Vatican II Roman Catholicism's worldview (3).
It is a form of governance of society that goes from the Ministry of Justice down to the smallest village, with the state regulating and restricting most of the key details of people's personal lives. The Ministry of Foreign Affairs is a key part of this, in charge of all vital records of births, marriages, deaths, divorces, etc. abroad, shielding the Republic from any foreign contagion in this area. The recent scandal about blocking visas for children born of surrogate mothers by that Ministry is the latest illustration of this.
The army of literally tens of thousands of civil servants, ministerial officials, public prosecutors, judges and lawyers that make their livelihood from this system help make it self-perpetuating - it's job protection for life, no matter what the real value or costs are.
The French touch: the "citizen child", personal responsibility and the future of the French Republic
If you look at the relative stability of the American and the English system versus the French, who, since these principles were put into law, have had
there is a legitimate question about the relation between this instability and the underlying mistrust of the capacity of ordinary people to make decisions about the most intimate aspects of their own lives.
As long as the French State continues to treat it's own citizens like children, incapable of making decisions by themselves without Red Queen Napoleon and his heirs making sure they aren't being irresponsible and capricious, it is likely that this sort of instability will continue. People talk of a Sixth Republic. Many otherwise reasonable people would willingly vote for the National Front just to "teach a lesson" to the elites that are governing them.
The left and the right skirt the issue, because they all want to have access to this unique source of power, and most of the leaders have all gone to the same elite schools where they are indoctrinated with the distrust of the population. They are also afraid they will open a Pandora's box of social instability - without the government there to intervene, won't there be chaos ? - even if they all know deep down that the Pandora's box is already open and they can't shut the lid.
Foreigners are lucky - they can escape this Red Queen. The French cannot escape her and must, at some point if they are to save their own unique brand of democracy, face her down.
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(1) «[…] qui peut mieux que le gouvernement juger de la validité des motifs sur lesquels la demande de ce changement est appuyée ? et qui peut prononcer si ce n’est lui, qui, placé au sommet de l’administration, est seul à portée de s’éclairer et de décider entre une demande raisonnable et un caprice ? […]
« Ainsi, elle tend à rétablir l’ordre, à faire disparaître une confusion que chaque jour aurait accrue, et vient compléter, parmi nous, d’une manière satisfaisante, la législation dans un des points les plus essentiels au maintien de la société. »[A]
[A] Locré, Législation civile, commerciale et criminelle, ou commentaire et complément des codes français, Tome deuxième, Bruxelles, 1836, pages 141 – 145
(2) « Le conseil d’Etat […] - Est d’avis que les principes sur lesquels repose l’état des hommes s’opposent à toute rectification des registres qui n’est pas le résultat d’un jugement provoqué par les parties intéressées à demander ou à contredire la rectification ; que ces principes ont toujours été respectés comme la plus ferme garantie de l’ordre social ; qu’ils ont été solennellement proclamés par l’ordonnance de 1667[B], qui a abrogé les enquêtes d’examen à future ; qu’ils viennent d’être encore consacrés dans le projet de la troisième loi du code civil ; qu’on ne pourrait y déroger sans porter le trouble dans les familles, et préjudicier les droits acquis […] »[C]
[B] This royal decree is the « decree of Louis XIV, King of France and Navarre, given at St Germain en Laye in the month of April 1667 ». Chapter XIII covers the abolition of "enquêtes à future" and forbids judges to order them. Chapter XX covers the creation of parish registers (baptism, marriage, death), as well as registers of novices, monks and others. Contrary to what the Council of State says, there is nothing in the royal decree that mandates that changes to parish registers are to be performed through the courts.
[C] Lepec, M., Recueil général des lois, décrets, ordonnances, etc: depuis le mois de Juin 1789 jusqu'au mois d'Août 1830, tome 9, n° 400, page 201, 1839, publié à Paris à l’Administration du Journal des notaires et des avocats
(3) Which has, admittedly, broadened since then to a more ecumenical/interfaith view of the inherent sacredness of human life and individual conscience in the pursuit of freedom within God's creation.
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