They train both the governing and governed classes. Does not the latter class, through the vote, necessarily participate in the conduct of a country's affairs? Does not its state of mind synthetically constitute public opinion?
The direction to be imparted to the study of these sciences is, therefore, a matter of prime importance from a social point of view. That education in these subjects may produce every possible advantage, it should be inspired by the needs and tendencies of our time, for every social science changes with social conditions themselves. This has been understood with respect to the study of the social sciences in general. The study of codified private law stands alone as the exception. It is frequently said that codified private law is not progressive; or that, even were it so, its progress cannot be given consideration, since a code must always be applied according to its letter, so long as it remains unmodified by legislation.
In all countries of codification, a widening variance is remarked between the principles as contained in the code and their application by the courts, and between their application and the social needs of modern life. Law no longer conforms with justice; at times it even thwarts justice. Are we to wonder, then, at the diminishing prestige of legislators and judges?
Is the situation different in countries where the law has not been codified? If so, should we blame codification? Or should we rather attribute the condition to a faulty method of interpretation and of application of codified law? May not both reasons be equally true?
In another place, we have examined, along general lines, the social transformations of the 1800s,2 and their influence upon the law in spite of codification. These transformations have imparted to legal relationships qualities which are the very contrary of those which they possessed when the Napoleonic Code appeared. Relationships have become multifarious, confused, and fluid in the extreme; in law they tend to become
2 [The author classifies these social transformations briefly as follows: Legal institutions or their underlying principles and governing ideas have met with three classes of influence since the Napoleonic Code: political fact, economic fact, and theory. Political influences have been the weakening of the sovereignty of the State and the strengthening of the democratic form of government; the economic influence has been the industrial expansion of the 1800s, which has altered the relative importance of real and personal property and given rise to class consciousness; theory has been felt through the ideas of social solidarity and of democracy. Cf. Alvarez, "Une nouvelle conception des etudes juridiques et de la codification du dioit civil," pt. ii, chaps, v-x, pp. 111-146, translated in "Progress of Continental Law in the Nineteenth Century" (Boston, 1917), being vol. xiof the Continental Legal History Series.-Transl.] international and social, and to receive more and more the mark of public law.3
The modifications which the civil law has undergone, in spite of the survival of its text, are consequently enormous. Its limits, underlying principles, and governing ideas have altered; many of the institutions which the Code embraced have been withdrawn from it to disappear entirely, or to be incorporated as a part of public law, or to form the subject of special enactments, based upon principles and ideas different from those of the Code. New institutions have been added; others still -and these form the bulk - have undergone but partial modification and are regulated to-day by the same ideas which inspired the Code and by others of newer and different origin. Want of agreement, therefore, marks these various elements, furnished, some by antiquated legislation, others by the statutes, customs, and judicial legislation of a new age. New solutions, not those furnished by a strict adherence to the Code, should be found to-day for the great problems of law.4
Our conclusions, in the above-mentioned study, were three:
(a) While the legislator provided no machinery to accommodate the law to the practical exigencies of life, fresh legislation, text-writers, and courts are to a large degree realizing this harmony. Codification, then, has not checked the development of law as is widely believed. It has merely interposed an obstacle, concealing it. This fact has but provoked the discord between the Code and society.
3 In spite of the conflict between the point of view of the actual state of society and that of the period of the Code, and, consequently, that of the Old Regime, society to-day tends to approach that of the Old Regime in the continually increasing role of the State, which subjects society to a police regulation similar to that of the older order; the increasing frequency of association, above all of the associations of the laboring classes, the nature and purpose of which make them resemble in more than one particular the guilds of the Old Regime, is yet another mark of similarity.
4 The indirect changes which the law has undergone have escaped even those who have fully noted the importance of the new legislation from the point of view of its new principles. Cf. especially Leroy, "Le Code civil et le droit nouveau" (Paris, 1904).
(b) Contrary to the belief of many distinguished writers,5 the problem is not merely to find a system which will permit the legal text to be made more pliant so that it may meet the new requirements of life, but also to discover a method of research by which the student may, first, recognize the changes that have taken place to date in legal institutions and sketch their true historical character, and then bring together the objective guides to interpretation proper for solving in theory and practice the problems that may arise in the future.
(c) A new system of codification should be found that will make it possible to keep private law in tune with the changes that are going on in society. Such a system should place no obstacle in the way of evolution, as the present system does, or conceal the evolution; yet it must leave legal relationships as secure as under the Napoleonic Code.