This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
6: Codification by Institution rather than Subject. Another principle underlying codification which should be frankly condemned is the arrangement of the codes according to subjects, that is to say, the reuniting in one code of everything referring to the title of the code. The consequence of this is that the same institution is regulated by as many different codes as it presents aspects. Thus in France the Civil Code governs the civil side of property and the Commercial Code its commercial side, while the Code of Forestry regulates its rural aspects, etc. It is impossible, by such a method, to grasp the true nature of institutions and the modifications which they are undergoing.
Arrangement by subject cannot be adopted in future codification. The reasons just mentioned, and the multiplicity and complexity of legal relationships are opposed to the method. Future codes must be limited to a single institution; that is to say, the same code should regulate everything bearing upon a given institution, in all its aspects. There will be a code of the law of the family; a code of property, in which will be explained, according to a rational classification, all forms of property: commercial, industrial, agrarian, etc.; there will be a code of the law of companies, and of associations; another of obligations in general; another of special varieties of contracts, civil or commercial; a code of labor, etc.
57 Jay, "La Protection legale des travailleurs" (Paris, 1904), p. 217.
It is needless to insist longer upon the advantages of such a method from the point of view of the law itself, its interpretation and its study.
7:Other Underlying Principles. There are yet other bases upon which future codification should be undertaken. They are derived from the traits which we have found distinguishing present-day legal relationships, that is: multiplicity, complexity, elasticity, and social and international tendencies.
If codification is to conform to them it must rest upon these principles:
1. By reason of their multiplicity, the legislative autnority - the judge being so considered whenever that function is conferred upon him - should abandon the idea of regulating by anticipation and in a single body of provisions all possible legal relationships. They should not, in fact, be brought within the purview of the law until and as they arise.
2. In view of the complexity of society juridical principles should be enacted in terms sufficiently broad to be equally applicable to public, private, or international law.
3. The legislator should abandon his pretension to regulate everything with the same nicety. In his work he must ever be mindful of the degree of mobility of the institution he is regulating. If it is a matter particularly varying in its nature, he should feel his way, drafting a trial law, actually legislating within the narrowest possible limits, and content to extend the action of the new law if it effectively accomplishes the aim proposed.
4. The law should be conceived in very general terms, flexible enough to be constantly adapted by the courts to the circumstances which they face.
This principle would not be new to modern lawmakers, since enactments of public law already possess this character and the authorities charged with applying them enjoy a large margin of discretion in interpretation. Constitutional and administrative law, in fact, leave unregulated certain subjects of the very highest importance. In this way their free evolution is not impaired by any legal text. In criminal law and procedure, the same is true. The judge to-day enjoys an increasing liberty not only in his valuation of the facts constituting the offense, but also in applying the law. This is abundantly evidenced by the recognition of attenuating circumstances, the suspension of punishment, the theories of the indeterminate sentence and of the individualization of punishment. Finally, too, we should recall the discredit into which the mediaeval system of arbitrary "legal" rules of proof has long since fallen.
5. The law should be made flexible, but the judge in addition should be given the threefold powers established by the German Code.
6. The power charged with declaring the law should also, by reason of the very fact of the increasing socialization of juridical relationships, assure its effective operation, especially if the law directly affects public interests. It should place this supervision in the hands of Government representatives or of the groups interested.
8:Those to be Rejected. Finally, we must consider those principles of the old codification which the modern legislator should reject as no longer appropriate to existing social conditions.
First, the principle that the application of laws shall be coextensive with the national territory. The idea originated in France as a reaction against the abuses of the Old Regime, and it has been exaggerated in all countries of codification. It should be abandoned, particularly in countries extending across different geographical zones, as, for example, the Latin-American countries, where social needs are not everywhere identical and consequently require a regulation appropriate to the region. Especially is this so of the regulation of water rights, of rural servitudes, and even of rights in land in general. Not only should laws be enacted for determinate localities or exempting certain regions, but also the local courts should be allowed to adopt certain measures, within limits fixed beforehand, in the interests of the district where they are situated.
Next, equality of all before the law can no longer be maintained as a principle, at least .in the old absolute manner. This reform has already been accomplished in part, and it has gained more ground than the last, especially in the. field of labor legislation.58