By Francois Geny 1
Sec. 1. the need for legislative technic - Sec. 2. different kinds of legal technic defined. - Sec. 3. legislative technic in the narrow sense. - Sec. 4. the elements of legislative technic classified. -Sec. 5. the technic of codification. - Sec. 6. the technic of the code napoleon. - Sec. 7. historical sources of the technic of the french civil code. - Sec. 8. the preliminary drafts of the french civil code. -Sec. 9. characteristics of the french code of 1804. -Sec. 10. the legislative technic of the future. -Sec. 11. the need for a consciously adopted technic. - Sec. 12. the technic of the german civil code. - Sec. 13. the new swiss civil code. - Sec. 14. merits of the two types compared. - Sec. 15. conclusion.
Apparently the idea that there is a special "legislative technic," out of which a number of special problems arise, did not become clear to the jurists of the world until after the work on the new Civil Code of Germany had been completed in 1896.
1[Professor in the University of Nancy; also author of chapter i (Judicial Freedom Of Decision: Its Necessity And Method) of this volume. The present chapter is a translation of the author's contribution to "Le Code Civil, 1804-1904: livre du centenaire," Societe d'Etudes Legislatives, Paris, 1904. The translation is by Ernest Bruncken.]
Of course legislators had always paid attention to the form in which they meant to cast their rules, the choice of words in which they would express them, the order in which the provisions were to be arranged, in brief, generally all the means and proceedings appropriate for the accomplishment of the purpose in view. Moreover, we may discover in all codifications whatsoever, but especially in those nearest to our own time, and therefore more easily analyzed by us, and above all in our French Civil Code of 1804, the influence of a certain special technic. Sometimes there are but slight traces of this, yet in this rudimentary form it is indispensable in order to insure the practical efficacy which is required of all written law. It seems, however, that for a long time, and until very recent years, everybody was satisfied with this unconscious and purely instinctive technic. Yet this is, from every point of view, insufficient if one wishes to have a really sure and stable basis for comprehensive legislation.
It is not even certain that the men who drafted the German Civil Code had in mind any ideal more elevated than the rather vague one of producing a code adapted to the needs of present-day civilization. Still, the method they adopted could not but exhibit clearly the qualities of consistency, homogeneity, and accuracy. And the first commentators of the "Burgerliches Gesetzbuch fur das deutsche Reich" had little difficulty in showing that it possesses as its characteristic feature a technic firmly established and faithfully adhered to, so that it is fit to serve, if not as the model, at least as a standard of comparison for all future rationally drawn codes. Whether one still has his doubts or not about the advantages or inconveniences of the form given to the statute in this case, at any rate one must draw from the analytical and critical labors expended on it the incontrovertible conclusion: in every attempt at codification, even in fragmentary form, there is an element clearly distinguishable which may be called the technic, and which refers to the plan and arrangement of the task. The jurist, whose business it is to teach us an appreciation of all the relations of the law to social life, must necessarily be interested also in this element.
Starting from this proposition, which is simple enough, and generally admitted by lawyers of to-day, I shall try to discover the nature of this technic as it exists at the present time, with particular regard to the influence which will be exerted on the French legislators of the future by the splendid and undying example set by the Code Napoleon.
In order to accomplish this purpose with as much precision as possible, I shall take up in their order the following subjects: (l) a definition of the general problem relating to legislative technic; (2) a review of the manner in which the problem has been solved by the French Civil Code of 1804; (3) an inquiry into whatever new factors might enter into such solution in case the code were to be revised.