Theories and examples abound. Among the theories, we find several jurists in France proposing to associate the Council of State in the labor of drafting, in order to remedy the disadvantages attending this work in legislative assemblies.73
Bertrand,74 who is an advocate of a total revision of legislation, avowedly readopts Rossi's old idea of drafting. According to him, parliament should lay down the bases of the revision, and then turn over to the executive the preparation of the draft. The actual work of drafting would be done by a commission named by the executive. Its draft would be submitted to the scrutiny of a legislative committee, and would be discussed in open sessions by its authors and the members of the latter committee.75
73 Varagnac, "Le Conseil d'Etat et les projets de reformes," in "Revue des Deux-Mondes" (Sept. 15, 1892); Tarbouriech, "Du Conseil d'Etat comme organe legislatif," in "Revue du Droit Public et de la Science Politique" (1894), vol. ii, pp. 272-285; Michon, "L'Initiative parlemen-taire et la reforme du travail legislatif" (Paris, 1898); Charles Benoisl, "La Reforme parlementaire" (Paris, 1902), Introduction, pp. xvi and xxx vii.
74 Attorney for the State before the Court of Cassation.
Roguin proposes the creation of a special commission, upon whom would fall the right and duty of preparing and placing the necessary legislative reforms before the legislature, which alone would have the right to vote them. Such a commission would be, in his opinion, either a body like the French Council of State, or, preferably, an executive council deriving its authority from the national constitution. Its function would be to investigate and to draft laws which the legislature would later vote. He also proposes the formation of permanent commissions, having similar functions, composed of members of the two legislative chambers; or permanent commissions of an extra-parliamentary nature. These would begin by laying before parliament the governing ideas which were to enter into future legislation. Parliament would voice its opinion upon these and then would follow the real work of formulating rules in detail. This task would be confided to the proper commission and would be carried out in accord with the ideas approved by parliament.76
1:Method of Drafting the Spanish and German Civil Codes. Leaving theory to examine actual examples of drafting, we find that everywhere to-day laws are prepared very differently from formerly. Especially do we see that laws of a sociological character are rarely drawn up within a parliament itself; they are prepared in advance by bodies of lawyers or skilled persons who submit them to the legislature. Before developing their subject these bodies investigate the facts and the nature of the rules involved, and also the legislation of a similar kind in other countries; they also give a hearing to the persons whose interests are affected by the proposed law.
75 Bertrand, "De la codification," an address made before the Court of Cassation at its opening session (Paris, 1888), pp. 30-31.
76 Roguin, "Observations sur la codification des lois civiles," pp. 100-104.
(a) One method of codification is that of the Civil Code of Spain. The Cortes ordered, May 11, 1888, that a Code should be drawn up by the "Commission on Codification," especially the section on civil law, and that this Commission should take, as its material to work from, the draft prepared in 1851, the data of comparative law, and the twenty-eight bases which the legislature in the Act of 1888 had itself laid down. When the draft was completed, it was presented to the legislature and was accepted with certain modifications. The system of the Spanish Code is thus seen to be nearly that which was once proposed by Rossi and taken up again in 1888 by Bertrand.
(b) The German Civil Code was drafted on another method. The Bundesrat named a Preliminary Commission, composed of five members, charged with disposing of certain preliminary problems. Primarily, there was the problem of the arrangement of the material and the scope of the future Code, inasmuch as certain matters had to be reserved for local (provincial) law; then, too, there was the problem of the method to be followed in the preparation of a work of this kind.
The draft itself of the Code was prepared by a First Commission charged with reducing it to concrete form. However, for each of the principal parts of the draft one member was named as draftsman to report on the subject, whose text should serve as a basis for discussion by the Commission as a whole. The Bundesrat appointed twelve members to serve upon this Commission, all of them officials or professors. Those especially named to report upon designated subjects devoted seven years to the task. After this the united work of the
Commission began and lasted six years. The draft was submitted to the Imperial Chancellor and then transmitted to the Bundesrat, which ordered its official publication in order to give it the widest possible publicity and to make it the object of study and criticism. In this way the draft came to be known, examined, discussed, and criticized by the scientific and business worlds, and their criticism facilitated the work of the legislature.
The Bundesrat then named a new Commission which it charged with the preparation of a second draft. This Commission was composed of twenty-two members, chosen not only from those learned in the law but also, and in greater part, from amongst the representatives of the great interests of the country, especially landholders and leaders of industry and commerce. To it were added a certain number of auxiliary members. The new Commission adopted as a basis of discussion the first draft, and the different parts of the new Code were made public so soon as each was drawn up. In this way it was possible to give ear to criticism before the completion of the final draft. The Commission, in fact, undertook a complete revision of the first draft, and in this way a second revised text resulted.