This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
42 Roguin, "Observations sur la codification des lois civiles" (Lausanne 1896), pp. 77-98.
In a word, Roguin expressly proposes to imitate the Russian system.43 He borrows also from the system of the Spanish Civil Code of 1889, of which we shall speak later. He would perfect his system by the creation of a special commission whose duty would be to" prepare reforms and lay them before the legislature, which alone would have the right to vote upon them.44
As to the style of expressing the legislative intent, Roguin does not favor brevity. On the contrary, he believes that laws should develop their subject; they should expressly cover the concrete problems which may arise, although this should not prevent their also stating abstract rules. The work of the legislator must, therefore, be both universal and particular. Progress, he believes, consists in increasing the provisions of the code and in combining general and specific rules. But such a method would be still far from producing a perfect code, a "code answering all difficulties with ease." To attain his ideal as nearly as possible, Roguin suggests that, alongside the code, conceived as we have just indicated, "an official commentary be voted by the legislature simultaneously with the code itself, physically forming a part of it, and possessing the same binding force." The commentary would be the work of a legislative committee, an executive council, or other similar body. Along with the commentary should be added a glossary of the terms employed which would be given official sanction at the same time as the commentary. Roguin cites a precedent from private international law supporting his idea of an official commentary: the
43 Cf. Korkounov, "Cours de theorie generate du droit" (French trans, by Tchernoff, Paris, 1903 [Eng. trans, in this Series, by W. G. Hastings, Boston, 1909]).
44 Roguin, op. cit. pp. 98-104.
Franco-Swiss Convention of 1869 upon jurisdiction and the execution of civil judgments. This Convention is accompanied by an explanatory memorandum which possesses equal force with the treaty itself.45
Roguin thus summarizes his ideas: "The law should be the work of the legislator alone. It should aim to settle all the difficulties that have been foreseen. It should be interpreted solely in the light of its author's intention. Its form must be logical and clear, its language precise and unvarying."46
It is evident that his ideas may be reduced to two: to maintain the code in agreement with social needs by periodical revisions, and to make the intent of the legislator clear on every occasion. He would have all problems answered, therefore, either by the code or by the official commentary; the function of the judge would be, perhaps, more mechanical than under the present system, for he would be limited, in each case, to a strict application of the intention of the legislator.
Of Roguin's fundamental ideas, one, that of periodic revision, is acceptable and even necessary. The other, which demands that the legislator anticipate every problem, either through the law itself or the official commentary, is neither acceptable nor necessary, since it is incompatible with the growing variety and natural dependence of legal relationships. To ask that the legislator provide against every eventuality and that the judge create nothing, is to go against the very nature of legal relationships. We shall see how these require of the legislator a more and more elastic regulation, and this means that the court must enjoy ever broader powers to adjust the law to social environment.
45 He might have cited with even greater force the Convention of March 20, 1883, for the protection of industrial property, and the Convention of Sept. 9, 1886, for the protection of literary and artistic property (final memorandum).
46 Roguin, op. cit. p. 133.
2:The Spanish Civil Code. Let us pass now to the examination of facts, and first the Civil Code of Spain.
In three supplementary articles, this Code requires that the Chief Justice of the Supreme Court and the Chief Justices of the Courts of Appeal present each year, to the Minister of Justice, a report upon the deficiencies and difficulties which have become apparent in applying the Code; they shall point out in detail the questions and points of law controverted and the articles and omissions which may have given rise to doubt. The Minister of Justice is ordered to transmit this report, along with the data furnished by the civil statistics for the year, to the General Commission on Codification. The Commission, after studying these documents, the decisions of the Supreme Court, and the progress made in other countries which it believes might be introduced into Spain, formulates every ten years the reforms which it deems opportune, and submits them to the Government.
This machinery created by the Spanish Code certainly marks a long step forward in codification. It was not, however, absolutely original with Spain. The Civil Code of Chile of 1855 contains similar provisions, though less complete. It had borrowed the idea, perfecting and developing it, from a provision of early Spanish law that the judges, in case of doubt, should refer the subject to the attention of the appropriate official.47
47 [Cf. Alvarez, "Une nouvelle conception des etudes juridiques et de la .codification du droit civil (Paris, 1904) p. 56, note (1), translated in "Continental Legal History Series," vol. xi. In general agreement with the Chilian Civil Code art. 5, should be mentioned the French Act of July 30, 1828, Dalloz, "Jurisprudence generate," 1828, iii, p. 3, art. 3: "Dans la session legislative qui suit le refere, une loi interpretative est proposee aux chambres," "Bulletin des lois," no. 244, Law no. 8800.
3:The German Civil Code. The German Civil Code, though it represents to-day the last word in legislative science and is destined to serve as a model for future lawmakers, maintains nevertheless the underlying principles of the French Civil Code; indeed, the question of underlying principles was not given due consideration in the drafting of the German Code.