This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
A very different sort of work, in this respect, is the new Swiss Civil Code, the draft of which was published in its final form by the message of the Federal Council on May 28, 1904.
It is understood that the draft in this form was the direct outcome of a preliminary draft by Professor Eugen Huber, whose work may be described in few words as "full, simple, and popular." The same qualities belong likewise to the draft as submitted by the Federal Council. In it, a number of details have been decidedly perfected and especially a number of provisions have been made clearer and more precise; but the general features have been preserved, especially with regard to the principal technical matters. In order to understand the dominant technical characteristics of this draft, we may turn to the report accompanying the preliminary work, to which the Message of May 28,1904, refers, with regard to these points, while it makes almost no observations of its own about them.
The learned author of the preliminary draft describes, in the introduction to his report and under the title
"The language of the draft and its arrangement," the broad outlines of the technical form which he intends to give to his work. Some of these principles remind one of the general rules which the German legislator followed in 1896. He draws a sharp distinction between statutes and theoretical discussion and states that it is his intention to formulate rules that are to be as comprehensive and synthetical as possible and yet shall be intelligible to everybody. Notwithstanding this, after laying down a number of general rules regarding such matters as editorial style, length, and arrangement of chapters, references, marginal notes, and the order in which the various subjects are taken up, the author expresses his intention of employing "a conventional and more or less esoteric language." On this point he says more explicitly: "So far as the requirements of language permit this, we have tried always to express by the same terms ideas that are repeated several times. . . . We have also tried constantly to use the same expression for frequently recurring ideas." Then he adds that the appearance of monotony in the provisions of the statute which might result from this method had seemed to be a lesser evil than any uncertainty regarding the meaning of the law itself.
Yet this plan, which was of itself moderate in form, was still further modified. It is stated in the report that notwithstanding the care taken to make the terminology uniform in its expression of the legal ideas incorporated in the statute, it must not be assumed that a different form of expression necessarily always implies a different sense. The author of the preliminary draft declares explicitly that he reserved to himself "a certain latitude," and that he had not undertaken "to distinguish invariably by the choice of various more or less synonymous expressions, as for instance 'may' and 'shall,'between statutory provisions of imperative and permissive character." In addition to these important reserves, which suffice to show that the Swiss draft does not purport to follow a technical language as rigorous as that of the German Civil Code, the report claims that it has attempted to avoid abstractions, and even generalizations, whenever principles would thereby be separated from their practical applications, even where this had to be done either by dividing a general subject or by making the several provisions rather detailed. This feature is confirmed by the Message of the Federal Council of May 28, 1904.
As a matter of fact, in both the first and second drafts, one cannot help noticing a striking difference of structure as compared to the German Code of 1896. The same difference, although in a minor degree, was noticeable in the federal laws on civil rights (June 22, 1881) and on obligations (June 10-14, 1881). The German Code takes a firm hold of the various states of fact to which it is to apply and regulates them in their most subtle differences, throwing around them a closely woven net of provisions that supplement and modify each other, and containing a multitude of exceptions, reservations, and mitigations. The Swiss draft generally contents itself with establishing, by a broad and elastic provision, the fundamental character to be given by the statute to some legal institution; it indicates in a summary way necessary qualifications, but does not enter into the details of the working of the institution. The Report claims as one of its most original peculiarities of external form that "everything is stated quite briefly." The draft of 1904 may perhaps draw the outlines a little more strongly with regard to certain points but does not change the general style of the original in any important respect. The Message of May 28, 1904, testifies, quite correctly, to the fact that the draft does not offend "against the ideal of conciseness, such as is required of a statute to be understood by the people in general."
This intentional and calculated disregard of technic, or rather this new "style" of technic, which distinguishes the Swiss draft so sharply from those codes that give definite rules for all anticipated cases, makes it appear more like an outline of legal principles than a body of provisions purporting to regulate all legal relations. It corresponds to a conception of the respective functions of legislature and judiciary which is peculiar to recent legislation in the Swiss Confederacy,6and which the author of the preliminary draft has illustrated in a striking manner.
There can be no doubt that he puts the statute unhesitatingly at the head of the sources of positive law and concedes to it complete supremacy within the legal field it intends to cover. He does not, however, allow himself to be deceived for a single moment by the fiction of a written law covering all cases, and does not pretend that he can supplement the deficiencies of the statute by artificial devices contrary to the exigencies of practical life. On the contrary, he confesses, even with a bit of complacency, that all codified statutes are at bottom insufficient. Not only does he maintain the authority of federal customs, but affirms that the courts properly exercise power to provide for cases which the statute -frequently with conscious intent-has not covered. From this point of view, which is rather the opposite from that of the German legislator, but which is all the more firmly established by appearing expressly in the
6 [That this conception is not a purely modern development in Switzerland, but is an inherited tradition, is interestingly shown by Pfen-ninger's chapters on Swiss Criminal Law in the "History of Continental Criminal Law" (Boston, 1916), being vol. vi of the Continental Legal History Series. - Ed.] text of sections 1 and 2 of the first draft, and still more plainly in sections 1 to 5 of the draft of 1904, the intentional relaxation of legislative technic appears like an homage rendered to the reality of things, and the best means of attaining the final goal of positive law.
This is, moreover, also stated in the Report of Professor Huber, where he justifies his making no distinction in the text between imperative and permissive or directory rules. He says: "We do not believe it would be advantageous if the legislature deprived the courts of all discretion in recognizing this point. The interpretation may vary, during the existence of the statute, in accordance with the opportunities of the text and the state of public conscience, and it would be a mistake to draw a statute in such a way as to make it impossible for the courts to follow the development of public opinion without a change of the text. . . . When the legislator intends to make a provision absolutely mandatory, he should say so. Where he fails to say so, the question will be decided in accordance with the spirit of the times." In a more general way, one may say that the authors of the draft of the Swiss Civil Code had a particularly large conception of positive law when they deemed the adoption of wide and elastic outlines, in those statutory rules which seemed most necessary for the social function of the law, the best method for making the written law all that it should be.
As it is thus characterized, the draft of a Swiss Civil Code has almost the appearance of being simply a more perfect form, adapted to the needs of the present time, of legislative technic, the germ of which we have been able to discover in the Code Napoleon as we have shown above.
However, we shall come still nearer to the truth if, leaving out of account our Civil Code of 1804 as one of those laws which, according to Crome,7were the natural product of our grandfathers' days and lacked the conscious technic of modern legislative skill, we confine ourselves to a comparison of contemporary models. There we shall see that the German draft of 1888, the Swiss drafts of 1900 and 1904, and the "Burgerliches Gesetzbuch" of 1896, represent so many different types of codification. At the two extremes of the line stand the first draft of the German Code and the preliminary draft of Huber. The first-named stands for a strict, stiff, systematic technic, attempting to place the entire law on a statutory bed of Procrustes. The other represents, on the other hand, a more supple, malleable, elastic form; it adopts a broader, more human method, and one may add, shows a little mistrust of the abilities of the legislature.