However, the consideration of this problem, with regard to the Civil Code of 1804 and the sort of technic which we have just analyzed, presents features of great delicacy.
First of all, it may be questioned whether there exists any technic in the sense in which we have defined it above.3 For it will be necessary to decide whether it is desirable, or even useful, that the legislator should have before him, consciously, a method the rules of which he is resolved faithfully to follow; or whether it may not be better that he should rely simply on the vague promptings of instinct or the indefinite precepts of tradition, in order to do that which will be most appropriate to the end he has in view. The Code Napoleon may well give us pause regarding this point. For its authors, who were hardly influenced by serious consideration of technical questions, still succeeded in imparting to their work, from their own minds and the traditions of the past, all the elements indispensable to make it a living success. Yet I do not believe that this example has much value as an argument against the superiority of a conscious technical method. In the first place, I believe that the authors of the Code of 1804 were, on account of their previous training and the circumstances of the time, in a particularly favorable position for the work of codifying our civil laws. It would be all the more presumptuous to count on equally favorable conditions at the present day, because the technical excellencies of the Civil Code are not found, at least to the same extent, in later statutes. In the next place, it is more than probable that the authors of the Code of 1804 could have improved their work materially, by working out their technic in advance more rationally and delicately, without losing any of its essential merits. At any rate, we could hardly venture to take the paradoxical position of maintaining that there is a positive advantage in letting things go blindly and without knowing what one is doing, and of denying that a good method will be an additional aid to superior natural qualifications. In short, the attentive consideration of the matter can do no harm, and consequently the fact that it may possibly do some good is sufficient justification for such attention.
3 See Sec. 3 supra.
The difficulty, however, which apparently has thus been overcome, at once returns in more embarrassing form from the very point we have just established. If we admit that the superiority of a conscious and reasoned tech-nic is incontestable, are we not, by this very reasoning, going to be led to prefer an easy, popular, spontaneous diction to a text of scholarly and detailed elaboration; in other words, shall we not be compelled to recognize as a special merit of any statute a certain amount of vagueness in terminology, an easy flow of diction, and generally a natural and spontaneous form as compared to the rigid and artificial manner of expression inherent in the proper notion of technic? Here is the crucial point of the question. And here the arguments drawn from the example of our Civil Code and the experience we have had with it will gather all its force. For many, even though agreeing that the French legislators of 1804 might and even ought to have reasoned out their technic more than they did, may yet assert that no matter how much attention they might have given to the subject, one could hardly demand from their efforts in this respect better results than as a matter of fact they have obtained. It is practically admitted that the greatest, or at least the most widely recognized, progress that has been made in French law during the 1800s has been achieved by means of interpretation of the Codes, and more particularly the Civil Code, principally through the fertile and sustained influence of judicial decisions. The courts, however, could not have done their best work and built up their most original legal structures except on the basis of statutory provisions that were a trifle loosely put together, with an elastic arrangement and flexible clauses, constituting a code that was not, at least if one may say so, nailed down and stereotyped in the inflexible armor of a close, rigid, and narrow tech-nic. In fact, this is the most conspicuous merit which foreigners accord to the technic, such as it is, of the French Civil Code. They say that by virtue of its malleability, its indefmiteness, and, to speak candidly, its lack of finish, it opened the way for an independent development of the law, which has taken place in the most fortunate manner thanks to the incessant and wisely progressive work of the courts, assisted, although perhaps a little hesitatingly, by theoretical science.
I do not mean to forget that such views disturb, nay even embarrass us a little in the consideration of our subject-matter. At any rate, they appear serious enough not to let themselves be flouted. We must rather try to find, sincerely and without prejudice, how much truth and what useful information we may gather from them. Even then, however, I believe that we must take care not to exaggerate their importance, or to admit from the start that they suffice to make useless our search for the technical means of attaining greater precision of legislation. Foreigners who have taken pains to render full and exact justice to our Civil Code have not failed to observe that its loose technic, while it may have favored the further development of French law, is nevertheless a truly weak point. They add that it would not have been possible to amend and transform it, mainly in the right direction, if it had not been for a close similarity of points of view existing between the legislators and the lawyers whose duty it was to put the work of the former into actual effect.
At bottom, therefore, it seems that the credit for the progress our law has made since the day when the Civil Code went into effect is due mainly to the perfect work of our judiciary. That perfection has been attained, in part by the innate and traditional qualities of the judges, in part by the excellent organization of our courts, more particularly, however, by the definite and decisive part which the Court of Cassation plays in our system. It is true that the work of our highest court, which since its inception has consisted essentially in maintaining the integrity of the statutes, could not, it seems, have produced the fertile results it has, especially with regard to new principles evolved judicially, if it had not been able to work on a pliable text, the interpretation of which left room for free growth and a happy spontaneity in construction. Yet if we look more closely we shall have no difficulty in discovering, I believe, that by an instinctive and methodical tendency the Court of Cassation at an early day, certainly since the close of the first third of the 1800s, assumed a sort of sovereign power in the realm of legal interpretation. In this it did no more than what was plainly and profoundly demanded by the essential reason for its existence, and was moreover assisted by a parallel tendency in legislation. This spirit of sovereign authority enabled the Court of Cassation to guide effectually the gradual development of our French law, without regard to mere formal considerations and without being obliged to yield to obstacles arising from a rigid precision in the text of the statutes. We may go farther than that, however. There is nothing to prove absolutely that our legal evolution would not have proceeded with quite as much continuity and perhaps with more methodical regularity under cover of a more explicit legal technic.
However that may be, the gains derived from our judicial development have at present become firmly incorporated in the law. There are certain indications that we are approaching a time when the subjective freedom of the courts will have to be restrained by a more accurate draftsmanship, to an extent which will presently be defined. At any rate I think that all will agree that it would be wise to adopt a line of conduct in this respect which is definitely drawn in accordance with the needs of present social conditions. For these require more than at any former period firmness and certainty in all legal relations. Thinking of the future, we ought to inquire into this question of legislative technic with the aid of all the data to be had in the present, and without rejecting what our past experience with the Civil Code may have to teach us.
Now recent codifications in Europe present to us two interesting types: the "Biirgerliches Gesetzbuch fur das Deutsche Reich," adopted in 1896, and the draft of the Swiss Civil Code, which was published in its most recent form by the Federal Council on May 28, 1904, and is the direct outgrowth of the preliminary draft completed in 1900 by Professor E. Huber.4 It will be well to analyze as closely as possible in what respects these two works represent different systems of legislative technic, while they are united by a general spirit common to both. From such an inquiry we may be able to draw information that will be useful to us if at any time the French laws are to be reformed.