In the absence of real practical experience, we may at least observe what the trend of opinion is among competent persons regarding the merits of the technical method followed on the one hand or on the other.
The simple and yet full form of the Swiss preliminary draft has pleased people very generally. Those, however, who have studied the draft more closely could not help being struck by the feebleness of a technical form which leaves so many gaps and ambiguities in so fundamental a structure as the civil law of a country. This feebleness is felt very strongly by a foreigner coming into contact with the provisions of the draft. While it is apparently very easy to get an intelligent notion of the proposed statute as a whole, it is just as difficult to penetrate into the precise meaning of the several provisions of a body of statutes that confines itself to giving only the grand outlines of the law. To make such a code practically effective, one must rely on the sagacity and skill of the men composing the judicial and executive departments of the Government and assume that this skill and sagacity will become cumulative until the law is fully established. This impression, to be sure, lessens to some extent when one reads the draft of 1904. The amendments of detail which have been made in this text, as compared to Huber's original draft, are enough to show how this form of legislation lends itself to methodical improvement, and also indicates how such improvement may be expected to come about.
At this point, the German "Burgerliches Gesetzbuch" of 1906 came upon the scene as a model which, on closer acquaintance, makes an impression differing in two respects from the Swiss drafts. On the one hand, it requires strict attention and quite a little mental labor to enter into the meaning of these well-balanced provisions, which are connected by a chain of rigorous logic and qualify or support each other. If I may testify to my personal experience, this effort is particularly great for the professor of law who is trying to give an account of the contents of the German Civil Code. The least little section cannot be explained without going into a pretty elaborate disquisition. On the other hand, after we have once mastered the full content of the provisions of this statute, we are compensated by a feeling that we stand on very solid ground which affords almost absolute security to practical affairs. Only one feels regret that this last advantage could not be gained except at the price of a tendency towards abstraction unrelieved by an element of piquancy in speech,-one might even say at the price of a pedantry that leaves no room for an easy flow of expression and makes it impossible that the legal provisions could ever be popularly understood. In this regard the principal fault of the first draft still weighs heavily on the statute in its final form. The general critical appreciation which the technical form of this Code has met may be put into a nutshell by adding to the above observations that the German Civil Code sometimes seems to exceed the bounds of what it is expedient to formulate in definite statutory rules. This is notably true where a categorical and formal distinction is made between the different kinds of legal commands, such as mandatory and directory provisions, but especially in the case of the detailed and imperative provisions regarding burden of proof.
All these considerations may be easily crystallized into the judgment that the legislative form best adapted to the needs and the aspirations of the present time will be found in a skillful combination of the two types which we have analyzed one after the other. The lightly drawn and elastic subdivisions of the Swiss drafts may form the substratum, but their contents should be made definite and precise by the methods which the German legislator has carried so far. In more simple form, and bearing in mind that the technical form of the Swiss Code is nothing but the technic of our Civil Code of 1804, modernized and better reasoned out, we may be able to admit that a judicious use of the principal methods of the "Burgerliches Gesetzbuch" of 1896 would suffice to assure for our French legislative technic all the improvements which at the present day are immediately desirable. This seems to have been felt by the learned and able author of the draft for a Tunisian civil and commercial code, Dr. Santillana. In his complicated and most excellent work, he has succeeded in improving the provisions of our French law by contact with German ideas, not to speak of the place he had to give to principles of Mohammedan law. However, to my mind, it is unfortunate that he has not carried far enough those technical methods of which the "Bur-gerliches Gesetzbuch" of 1896 gave him such an excellent model.
In order to derive from our study more complete and definite conclusions, we may rise above the differences we have just emphasized and add some new rules to the principles that have been known for a long time and have served as such in finding a basis for our investigations. These new rules we may hold to be established by unanimous acceptance in the most recent codifications, and it would seem that in future statute-making they ought to be carefully observed.
I. A modern legislator ought to be on his guard against enacting theoretical ideas or taking sides in regard to mere doctrinal conceptions. He should restrict himself to formulating rules having essentially practical effects.
II. While he should avoid abstractions, which are often meaningless for practical purposes, he need not be afraid of a certain amount of generalization. It would even seem to be the proper function of statutory legislation not to attempt the making of a distinct rule for each separate case, but rather to adopt provisions broad enough for each to comprise all the concrete states of fact that have common characteristics sufficient to place them within a single class.
III. The rules need not be in popular language except to this extent, that they should express a real social phenomenon in clear language appropriate to the time and the social environment.
IV. Legal definitions should no longer aim at systematic, logical exactness, but rather at describing the legal ideas to which the statute refers in firm outlines so as to show clearly to what the rule applies. It is with this object in view that English statutes frequently contain such definitions, while in our French statutes we find them but rarely. The practice ought to be extended in proper cases.
V. It would seem that a statute might very well make use of special grammatical forms to distinguish provisions of different nature. It ought not to be deterred by the monotony of stereotyped formulas if these help to make the meaning more plain. Such stereotyped formulas, however, are appropriate only to rules that can be expressed very definitely and which, in the opinion of the legislator, do not require different interpretation according to the nature of the concrete states of fact to which they are to apply.
VI. Legislative technic will find further development principally in the direction of stability and accuracy of its terminology. Undoubtedly the discussion has not yet been closed regarding the degree of rigor to which this stability and accuracy should be carried. There is no apparent doubt, however, that every time a legislator wishes to apply to a clearly determined legal idea a term which shall describe it specifically and distinguish it from all others, he must choose a term that is deliberately adapted to that one idea, and then adhere invariably to that one term. It is easy to see what certainty this method can assure to the interests which require certainty in the law, and we cannot fail to understand that in this manner we can give to the written law, so far as its technical form is concerned, all the excellence which we may ever hope for it.
If these rules are neglected, legislative technic must remain shifting and unstable in its details, and consequently in a constant process of readaptation. The essential thing is that the modern legislator should pay conscious attention to this phase of his labors and try to improve it by cultivating a proper comprehension of these requirements.
I am certainly far from believing that this technical or "formal" element in legislation is of equal importance with the substance of law in its moral and sociological relations. While emphasizing however, the paramount character of the latter, to which so many and important investigations have very properly been devoted, I am satisfied that I have shown what modest but necessary place belongs also to these purely technical considerations in any analysis of modern civil law or in any attempt at revising it.