Understanding jus soli and jus sanguinis

For this new article, let us have a look at jus soli and jus sanguinis. The jus sanguinis makes descent the criterion of automatic acquisition of nationality, conceived as a heritage which is transmitted to the descendants. The jus soli is based on the place of birth of the individual. As early as February 23, 1515, the Parliament of Paris made reference to jus soli, which later became the method of determining nationality under the old French law. The French Code civil of 1804, on the other hand, established a jus sanguinis, against the advice of Napoleon. Soil law was not reintroduced into French law until 1889 and has been subject to some fluctuation.

The jus soli in Latin is the rule of law assigning a nationality to a natural person by reason of his birth in a given territory, with or without additional conditions. The “double law of the soil” consists in attributing the nationality of a country to the person born on its territory and of which a parent was also born there: it is therefore an example of law of the soil with additional conditions. In France, nationality law has been governed by the Code civil since 1804: nationality is transmitted by descent, or directly to a child born in France to stateless parents. In 1851, the “double law of the soil” was instituted: any person born in France to a foreign parent who was born there was born in France. The law, however, leaves beneficiaries of dual land rights free to repudiate French nationality by majority by declaration. This faculty will be removed by the law of June 26, 1889 which defines “The Republican use of the law of the soil”. It is article 19 of the French Code civil which enshrines this “double law of the soil” which allows the vast majority of “French people by blood” to easily prove their nationality which would be, without this means, a diabolical proof to establish because it would require to go back to infinity the chain of filiation. In addition, the child of a Frenchman is French, regardless of the child’s place of birth (blood law). However, a child born and having lived at least five years in France of parents both born abroad can become French when they reach the age of majority if they have their usual residence in France. This recognition of French nationality was subject from 1993 to 1998, date of application of the Pasqua-Debré laws to a prior request, it is now automatic (unless refused by the interested party), or from the age of thirteen years old if the parents request it and if the child has lived in France since the age of eight years old.

The “double law of the soil”, when talking about jus soli and jus sanguinis, applied until 1993 to the children of a person born in a former French colony. Since 1993, only the children of parents born in Algeria before 1962 (then French department and not a colony) are concerned. Law n° 2016-274 of March 7, 2016 relating to the right of foreigners in France passed after two years of legislative work, widens by its article 59 the access to French nationality by the law of the soil, by opening French nationality to their majority, to people living on French territory “since the age of six and having followed their compulsory education in France when they have a brother or sister having acquired French nationality”. This law introduces an innovation in French law. It creates a new form of acquisition of French nationality, a derivative, indirect land right, transmitted by the sibling bond, which does not require being born on French territory, but having a brother or sister which became French by the law of the soil.

Continuing on jus soli and jus sanguinis, the law of blood or in Latin, jus sanguinis, is the rule of law attributing to children the nationality of their parents, regardless of their place of birth. This is the dominant principle in most countries. In certain countries of immigration, such as the United States of America, Argentina, Canada, or formerly Australia, children have the nationality of the country by their only birth in the territory, what is called the law of soil (jus soli). These rights are not exclusive and legislation may provide for both. In France, nationality law is organised by the Code civil. Article 18 provides that “A child whose French parent at least is French is French”. The law of the soil was introduced in France in 1515 by a decree of the parliament of Paris (which related to the right of windfall). However, one cannot say that there existed at that time a concept comparable to that contemporary of French nationality which gathers several different rights: that to be régnicole (justiciable of the French royal courts), that of the naturalness (it that is, to be governed by local civil status, which was not a national law but regional customs), and that of citizenship (right to vote and be elected, which was not more uniform since France was a society of orders and communities).

The right of blood for children born to French parents abroad is recognized by the Mabile Judgement, judgement of the Parliament of Paris dated September 7, 1576. In the present case, the case concerned a girl, born in England from parents both French, who was recognized as French on her return to France despite her orphan status (her two parents died before her return to France). Citizenship was declined at different local scales: one could not be a French régnicole person but be able to vote in the municipal elections of the city where one was bourgeois, while a French régnicole who did not yet have his letters of bourgeoisie was considered like a stranger to the city and didn’t vote. In many cities, you had to be a native of the city to be able to claim public service. Under the Old Regime in France, any change in naturalness required royal letters of naturalisation.

It was not until the French Constitution of 1791 that a positive law mentioned the possibility of automatic acquisition of nationality by birth in France: “French sons of foreigners born in France and who live in the kingdom are French”. In 1804, the Code civil, against the wish of Napoléon Bonaparte (Bonaparte wanted any person of foreign origin with a French education to be French) established the primacy of paternal filiation (right of blood or jus sanguinis): “Nationality is now an attribute of the person, it is transmitted like the family name, by descent. It is allocated once and for all at birth, and no longer depends on residence on the territory of France” but nevertheless retains the right of soil (jus soli). Individuals born to foreigners must nevertheless claim French nationality within one year of reaching their majority. This break with tradition had no ethnic dimension but simply meant that the nation being like a big family, we would henceforth attribute nationality like other personal rights (names, property) by transmission by the pater familias.

In 1851, the “double law of the soil” is established. The law of 1889, “against a background of increasing immigration”, marks the return of the simple right of the soil and nationality to its majority for the child born in France who still resides there which combines with the right of blood because “France having become a country of immigration, it could not allow a population of foreigners to grow any longer within it”. It should be noted that proof of French nationality, when it results solely from parentage, is impossible to establish: it is diabolical proof because it would require to go back to infinity the chain of parentage. This is what can be said concerning jus soli and jus sanguinis.

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