May one assume, as some have argued, that this last type will be the form in which codes will be drawn in future? The mere fact that the Swiss drafts are the most recent would undoubtedly be insufficient to prove this without exaggerating the importance of a chronological difference of a few years. Even if that difference were greater than it is, the question of date by itself would not be enough to solve a problem which has arisen so recently as that with which we are dealing. Moreover, the temptation to follow blindly a course of evolution may be great, but it is deceptive just the same where that evolution itself stands in need of enlightened guidance. However, it is asserted, in favor of the theory that a technic such as that of the Swiss original draft will recommend itself generally in the future, that it seems to correspond, more than any other, "with the social movement which to-day tends more and more to penetrate the whole private law." Yet, upon closer consideration; I fear that this is a misleading idea. For even if we admit, with certain indispensable qualifications, that the "socialization" of the law, and especially of private law, in the near future cannot be avoided, there is nothing to prove that a code with broad and elastic provisions is more apt to insure such socialization than one that lays down strict and authoritative rules. It all depends on how much confidence one has in those who must administer the "social" statutes, especially the courts. If one believes, as do many of those who desire to regulate social processes by statutes, that the legislative power alone is sufficiently free from ancient prejudices, and at the same time strong enough to curb the excesses of the traditional individualism, he will conclude that the desired socialization will be accomplished precisely in the degree in which the provisions of the statutory law are detailed, definite, and cannot be evaded (for instance, as regards the legal protection of workingmen). The fact is that the question what tendencies of development there may be in the law has nothing to do with the question of technic, which deals merely with the form of law. Legislative technic has its own peculiar object; and that is to make as effective as is possible to make it any legal system to which it is applied. It makes no difference whether that system is frankly individualistic or out-and-out socialistic. The character of the system itself does not at all determine the form of the law.
7 In his "System des deutschen burgerlichen Rechts," vol. i, p. 88.
In trying to find a rational criterion by which to determine the form a statute should take it would seem that the only general idea which is apt to throw light on the subject may be gathered from the part played by the written law in expressing the whole body of legal ideas, compared to other sources of positive law, taking as exemplifications the German and Swiss codifications and also our French Civil Code of 1804. The written law is an expression of will intending to regulate in a definite manner the activities of men, living in society, by means of language. It is necessary, therefore, to know to what extent it may be counted upon to have innate force and, so to speak, put itself into effect, so as to guarantee the security of subjective rights while yet allowing these to develop in harmony with the purposes of society, and thereby to avoid the necessity of employing other methods for creating or transforming positive law. More briefly stated: what can the written law do by itself, and what must it leave to the action of social processes? This is an infinitely difficult, possibly an insoluble problem. For we may have to admit as an indubitable fact that the statute law is not all-sufficient, that it will be inadequate to the needs of to-morrow no matter how perfect it may be at any given date; yet it will always be possible to embrace more or less completely all social relations, to make its network of rules more or less close so as either to restrict or, on the contrary, to extend the field left to customary law or to the free discretion of the judge. Now it would seem that it will depend much less on fixed principles than on considerations of expediency, whether we shall decide upon one or the other of these tendencies. These considerations may consist of popular habits, of the position held by the judiciary, and the confidence it inspires, of the importance attributed to the certainty of the law so as to render business secure, or any other considerations, varying according to time and place. At any rate, a legislator who makes statutes for a definite country and at a given time is in a position where he can appreciate the weight to be attached to all these matters. Therefore, his first rule to follow ought to be perhaps this, that he must determine as accurately as possible what subject-matters lend themselves to definite and detailed regulation, and what others should to a great extent be left to the unhampered discretion of those whose business it is to interpret the statute, because they require a greater freedom of administration. We may add, without appearing to be over-bold, that the general conditions of the civilization of our time suggest in most cases the need for greater stability and accuracy of the law by means of rather close statutory rules, because the most urgent requirement of the legal organization among civilized nations is an assured security for all the various interests.
It would be highly desirable to confirm and elucidate the ideas just stated by referring to the practical results of the recent codifications and their characteristic forms as analyzed above. Unfortunately, this source of information fails us, not only with regard to the Swiss Code, which [at the time this paper was written] had not yet become law, but even as regards the German "Burger-lichesGesetzbuch," which has not yet been in force long enough to warrant any inferences based on experience respecting so subtle and elusive an element as the legislative technic of modern statutes.