It does contain, however, a few express innovations. As to the sources of law, the German Code is silent upon the legal value of custom. This permits the German lawyer to infer that a general or imperial custom may exist, as binding as the written law, and capable, therefore, of completing, modifying, or even annulling it. As to local custom, the question remains in lively debate.48
The legal technology and terminology of the new Code offer some very characteristic features and are of great importance from the point of view of interpretation. Indeed, not only was every conception of a doctrinal nature banished from the text, not only was no conception clothed in legal formula, but even where it was necessary to adopt one impliedly, as where one or another of concrete solutions had to be accepted, it was specifically declared that theories of this sort had no obligatory force in law but remained subject to the criticism and fluctuations of legal thought.49 But while the German legislator has refrained from making juridical theories
This Act was repealed by the Act of April 1, 1837, reported with the "expose des motifs" in Dalloz, "Jurisprudence generale," 1837, iii, p. 152. Cf. also Uruguay, Civil Code, art. 14; Ecuador, ibid., art. 19, and Peru, ibid., art. 11.-Transl.] into law, he has not excluded legal definitions. On the contrary, they are very numerous and form one of the most noticeable characteristics of the new Code. These definitions never aim to formulate a theoretical or abstract conception. They are limited to indicating the precise and concrete meaning of certain expressions employed throughout by the legislator.50
48 Saleilles, "Introduction a l'etude du droit civil allemand" (Paris, 1904), no. ix; and "Introduction" to the official French trans, of the German Civil Code, published by the Comite de Legislation Etrangere (Paris, 1904), vol. i, no. xvi; Geny, "Methode d'interpretation et sources en droit prive positif," pp. 384 seq. [and his chapter translated post in the present volume].
49 Saleilles, "Introduction a l'etude du droit civil allemand," p. 105; "Introduction" to French trans, of German Civil Code, no. xxiv.
The German Code contains some bold provisions regulating the powers of the judge. The judge is not restricted, as in other countries, to the simple interpretation of the letter of the law. He may, in certain cases and under certain conditions, limit the exercise of rights, or modify a contract; in several instances, also, he possesses a discretionary power to decide each case according to its equities instead of having to apply a rigidly imposed rule. This has been rightly called the first effort at judicial individualization of the law in civil matters.51
Finally, with regard to interpretation, although the Code refrains from expressly adopting any system, it is apparent from the preliminary work of drafting, that that of Saleilles, already referred to, was accepted, and of the few text-writers who have devoted time to this subject two are clearly of this opinion.52
On the whole, the German Civil Code has not solved the problem of the underlying principles of codification, and in this particular it cannot be used as a model for future legislation. It is an advance; but it is to be feared that it will soon become antiquated and give rise to the same inconveniences as have marked French codification.
50 Saleilles, "Introduction a l'etude du droit civil allemand," pp. 110 seq.; "Introduction" to French trans, of German Civil Code, no. xxiv; for the list of definitions and technical expressions, ibid., pp. xli-xliv.
51 Saleilles, "Introduction a l'etude du droit civil allemand," p. 118.
52 Holder and Ehrlich. Cf. Saleilles, ibid., no. x.
4: The Problem of the Underlying Principles. We must, therefore, state more definitely than heretofore the problem of the principles that should underlie future codification. To give to codification the advantages so far indicated, it is first necessary to specify the precise point from which the legislator is to set out. To do this we must rid ourselves of prejudices, and seriously observe the advantages and disadvantages traceable during the 1800s to the principles underlying the present codification, as well as to those underlying the prevalent new legislation. We have already examined both; we saw how everywhere modern laws are inspired by new governing ideas; that they rest upon other bases than formerly; and that to this fact we chiefly owe the discord between the old codification and the new legislation. When we reexamine the most important of the principles underlying French codification with a view to determining what to retain and what to reject, we must first decide whether the written law is to be the sole source of rules to govern legal relationships.
Now the truth is that this usual way of putting the question is unsatisfactory. The problem really is, What authority should have the power to create law?
In our opinion, it is impossible that in the future this duty should devolve upon the legislature alone. The complexity and flexibility of relationships are opposed to the idea. Rules of law should be pronounced by a power which does not encounter parliamentary obstacles in its elaboration, and which also can lend ear to all the forces creative of new legal relationships. In other words, a system must be found which, without giving the force of statute to judicial decisions or custom, yet takes them into account as well as other elements which really make juridical relationships.
Now this object can only be obtained by employing a double means. First, the principle which is still so profoundly ingrained, that of the separation of legislative and judicial functions, must be abandoned; each of these powers must be permitted to regulate, within set limits, the relationships of law. Furthermore, upon certain groups of society should be conferred the power to adopt rules of conduct binding all members of the group. This is a principle which would permit the ideal of democracy to penetrate to the very depths of the realities of life and law.