In what terms shall we state the problem of future codification, for the countries where codification has been adopted?
In France, as indeed, in all countries of codification, it is commonly believed to be merely a problem of a more or less complete revision of the Codes, with, at most, an investigation into the governing ideas which are to enter into it. Even so regarded, the idea of entire recodification has adherents in Italy, but very few in
France. Not that such a task is regarded as impossible, but the feeling is that it is proper to leave to the courts the task of adjusting the law to society; or that the present Code satisfies practical needs and therefore the only purpose of a revision would be to incorporate enactments voted since the Code went into effect.39
We believe that our investigation so far suffices to dismiss this view. The problem of future codification is still with us in all its complexity; it is one, indeed, of exceeding delicacy.
Shall we proclaim the failure of codification and extol the English system, which, as has been shown, does not possess the same defects?
We might, at first, be the more tempted to do so, since the interdependence and mobility of legal relationships render codification each day more difficult. This is indeed the reason urged against the attempt in the field of administrative law. There, not only is codification impossible, they say, but it would be a distinct disadvantage, because, while it remains uncodified, this law is more easily inspired by considerations of general utility. It is called a law of equity, comparing it to English law.40 And the further claim is made that without codification the court can more easily extend, mold, or even create rules of law; it is this fact that has led the decisions of the French Council of State to be called "quasi-praetorian" or "semi-praetorian." 41 These considerations, which are generally looked upon as conclusive in administrative law, seem no less so in civil law.
39 The last opinion is that of a recent work on civil law, intended as a textbook for teaching, by Surville, "Elements d'un cours de droit civil francais" (Paris 1904), vol. i, no. 78.
40 Hauriou, "Precis de droit administratif" (oth ed., Paris 1903), pp. x-xi.
41 Laferriere, "Traite de la juridiction administrative et du recours contentieux" (2d ed., Paris 1896), vol. ii, p. 411.
Such a solution, however, would be too hasty. Despite disadvantages and difficulties, codification possesses other weighty advantages which it is important to preserve. A flat affirmative to the question would, therefore, be extreme; it would be preferable to work out a system of codification upon underlying principles, permitting of the adjustment of private law to social change, without opposing it or concealing it, and yet conferring upon legal institutions the same security as under the Napoleonic Code.
This will be our first problem; later we shall discuss the governing ideas which should inspire the new codification, and the method most likely to bring success.
1: Theories as to these. Scarcely any one has raised the question as to what principles shall underlie future codification in order to avoid the defects of the existing system. And yet this problem is of the highest importance. One by one, with critical eye, we must examine the principles underlying the present codification ; in so doing we may be led to judge which to retain and which to reject.
As to the principles underlying future codification, there are, to our knowledge, but two theories and two facts to which we may turn as a basis of study. The facts are the Civil Codes of Spain and Germany.
(a) The first theory which we must consider is that of the French writers, to whom we have already given some attention. According to them the defects of the existing codification are due wholly to the fact that it closes all other sources of law except legislation, in particular custom and judge-made law. The principles underlying codification should be altered, therefore, so as to admit these in the future as sources of law.
Without spending more time over a theory already discussed, we would suggest that .these authors, unconsciously perhaps, are returning by a mere detour to the system of the early French law, or to the present system of English law, whose very defects we would avoid.
(b) The second theory was put forward by the Swiss jurist Roguin. He advocates an honest departure from the traditional principles underlying codification. Above all, he believes that there must be an absolute separation of the legislative and judicial functions. The legislature alone should have the power to make law; the courts should be limited to applying it strictly, according to the intent of the legislator, without concern for any other consideration.
How, then, does Roguin propose to maintain harmony between codified law and society? He does not concede a return to custom, nor would he confide to courts and text-writers the task of progressively improving the law; he is equally opposed to the adoption of incomplete laws dictated as practical needs make themselves felt. He concludes that the "only possible and rational means, the only means which seems to present no disadvantage and to meet the danger of the stiffening and crystallizing of the civil law, is to undertake periodical and complete recodifications."42 With this view he proposes to provide constitutionally that a general revision of the civil code shall be made, say every twenty-five years, and that the legislature shall be legally obligated to throw the entire code open to discussion and restudy. There would be no obligation to change the law at each revision, but only when the necessity was evident. At the close of each period of twenty-five years a new edition of the law would be published, and in this way both the profession and the laity would possess a collected body of law which they might consult and apply without turning to prior texts. There would be an absolute legislative novation.