The underlying principles and governing ideas which we have advocated are not derived, let it be noted, from theories and speculations which are more or less metaphysical, but from an observation of the political and economic conditions of present society and of the trend imparted by them to modern legislation. The chief result of our observation which we would particularly emphasize is that, as social conditions are no longer what they were at the time of the adoption of the French Code, the underlying principles and governing ideas of future codification must be very different.
In 1804 things were favorable to codification. Social conditions were sharply outlined because the new political organization was strong and the industrial revolution had not yet begun. It was merely a question of reconciling two systems of law until then coexisting, and of attuning them to the new political and social order. At that time the legislator did not need to concern himself how, in the future, law was to be made to accord with social requirements. His aim was to solidify the then new social order by unifying and simplifying the law, and so he disregarded the evolutionary life of law. He drafted the Code, therefore, upon such bases as would unify and simplify the law and render it clear and precise. His governing ideas were drawn from the new political order, which breathed individualism. Reasoning according to these principles, interpretation has maintained that its entire function is merely to search for legislative intention, and it has applied to modern problems the same master-conceptions that entered into the Code. It imagined that the new problems were identical in essence with the old ones anticipated by the Code; whereas the truth is that had the legislator a century ago foreseen these problems he would have regulated them along wholly different lines.
69 Book III.
70 Book IV.
71 Book V. Cf. Saleilles, "Introduction" to the French trans, of the German Civil Code, nos. xix-xxiii; and "La Theorie possessoire du Code Civil allemand," from "Revue Critique de Legislation et de Jurisprudence" (Paris, 1904).
72 Saleilles, "Introduction a l'etude du droit civil allemand," p. 119.
Social conditions are very different to-day from those of 1804, when the Code was adopted. Far from living amid social conditions that are well defined, our epoch is openly evolutionary; our regime of individualism is vanishing, and to it succeeds a new social order whose scope it is impossible to know - socialism. The labor of the legislator to-day is, therefore, very different from what it was when the 1800s began. The problem is no longer one of strengthening a social order and of unifying and fortifying the laws. Nor should we be oblivious to the fact that the hastening evolution of the law will eventually transform the present order into something quite different. Indeed, this evolution must serve as a starting point for the new regime, which must follow it; codification must set out from this point toward a new goal.
With the change in the underlying principles and governing ideas of codification must come a corresponding transformation in legal interpretation. In facing new problems the interpretation must not seek, as formerly, to determine the intention of the legislator, irrespective of the nature of the problem, but to keep adjusting the law to new juridical relationships, so that it conforms to the nature which social changes impart to them. We have already expressed our conclusions as to what the underlying principles of the new codification should be to attain its purpose, and also as to the elements to be considered in interpretation in order that it accomplish its new function. We said, too, that the German legislator had not appeared in an altogether modern role in this respect, and that France ought not to imitate her neighbor in a future revision of the Code.
In weighing the governing ideas which are to enter into the new code, we must be careful, considering the character of the period with which we are engaged, not to push any one to exaggeration.
And yet the idea of solidarity, which has become so manifest in the changes wrought in society, must be developed further than in the German Code. Solidarity should be accepted not only in the two phases admitted in that Code, but also in the idea of reciprocal aid, especially between master and servant, between members of the same association and in general between persons bound by similar interests; as well, too, in those other phases seen in the extension of liability beyond the case of actual culpability. Briefly, wherever possible, right should be tempered by duty.
The idea of general interest or group interests -wherever a law aims to benefit a definite group - must be given even greater prominence than in the German Code, for such interest must predominate over that of the individual considered as a unit. The group interest will not be hard to determine, since it will be represented by different organizations created for the very purpose of defending it. The general interest, while at times difficult to ascertain, can in most cases be exactly determined, especially in agrarian and industrial matters.
Such are the ideas which, so far as possible, should become the soul of the new codification, giving it new life, filling its deficiencies, and unifying it. And furthermore, only in this way may we possess legal institutions which correspond to the democratic spirit of our age.
As to the introduction of new legal rules and their application to practical needs, the Code and special laws of Germany furnish the necessary material as examples to accomplish the task successfully.