This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The conception of legislative technic is dependent upon a more general concept, of which it is in reality nothing but a branch. That concept was carefully considered long ago by Savigny, studied more particularly in its application to Roman law with his usual breadth of manner by Jhering, and taken up with more precision and succinctness by Cuq. It is the concept of a technical element in objective law, or of legal technic in general.
To express the idea in the fewest words in a form least open to objections, this concept is deduced from a consideration of the proper purpose of the law, understood essentially as the body of positive rules which governs human beings in their social relations.
In order to regulate human conduct in external matters, which comprises the whole province of law, one must not restrict oneself to learning, by observation and reflection, certain principles regarding life in society. If the task is to be done in a scientific way, one must, as it were, set these principles to work, and adapt them to concrete conditions. For that purpose is needed a set of practical devices, which one might call the tools of the trade, and which constitute the technic of the law. Thus we have by the side of the element of substance, which is ethical and sociological in its nature, a formal element in the law, which is merely a matter of practical expediency. It may not always be easy to separate this element from the former when it is met with in real life, but it is distinguishable clearly enough to the mind as that which serves merely to make possible the practical application of the rules of conduct in accordance with the facts and the nature of things.
Understood in this wide sense, technic holds an important place in the organization of legal science. It is capable of a large number of diverse applications which one may arrange systematically in a series corresponding to those various parts of the legal system itself to which each refers.
First of all, technic comes into play at the very beginning of positive law itself. The establishment of the State, alongside or over and above the various primitive groups, its organization, its way of functioning, the whole body of formal methods by which it is intended to bring about the orderly conduct of social life, efficiently and accurately, - all this is a matter of legal technic. So it is a matter of technic when one considers the artificial sources of law: the written law, with its rigid precepts, which take hold of the acts of persons, sometimes insufficiently or even awkardly, but with the purpose of casting them into a definite mold to overcome their insidious pliability, and to make them follow definite lines; legal customs likewise, in so far as it is attempted to fix their nature in order to make them more effective, and to bring them within definite categories which seemed originally foreign to the nature of mere custom; the authority of commentators and courts, whereby scientific inquiry is simplified by utilizing the manner in which tradition, the decisions, daily practice, and science are kept plastic by contact with living realities; finally codification, which by clearing away all prior law regarding the subject to which it refers prepares a virgin soil and a solid foundation on which to build a new legal edifice.
On a higher level, technic plays its part in the application of the law actually in effect. Such matters comprise the forms of process by means of which the executive power may insure good order; or the manner in which causes may be submitted to the courts for the solution of legal difficulties, under forms that safeguard the rights of parties and are conclusive; or where extrajudicial legal advice is given, in the proper legal manner, in order to make it easier to shape future acts in harmony with the rules of law and to put the latter into actual effect.
When we come to look at what might be called the internal formation and elaboration of positive law, as it manifests itself in the proper functions of counselors at law, we again find legal technic in the thousand difficult paths of legal interpretation. There it tends to find appropriate forms for the working of legal institutions, it simplifies complexities and facilitates distinctions, whereby the social body is enabled to assimilate to itself the substance of the law; it helps the body of rules to enter into the actual current of human life; in brief, it procures the greatest possible efficacy of law in accordance with the nature of men and things.
The last-named form of legal technic, which I should like to call "fundamental technic," is the most characteristic for the reason that it is independent of the formal organization of society and refers to the most fundamental ideas of legal science. Moreover, it contains in reality all the others within itself. It exhibits most clearly the inmost purpose of the science of positive law, which is none other than to imbue legal rules with actual life, so that they become fit to regulate those phenomena - physical, psychological, moral, political, economic - in which the nature, tendencies, needs, and also the conflicts of interest of human beings living in society manifest themselves. Now, the most common method by which legal technic, understood in this sense, proceeds is to point out the salient forms assumed by the various realities of social life, and to arrange these in their logical categories so that the real meaning of the rule may be understood with the help of scientific thinking. This process may be easily observed both in the elaboration of general legal ideas, such as, for instance, the organization of the family, property and its divisions, succession, liability, juridical persons, and in the formation of particular concepts, such as domicile, absence, notoriousness of easements and other rights in land, the effects of possession of chattels, or of incorporeal rights in property, quasi-usufruct, etc. This process implies first the statement of facts, then their representation in the form of ideas, and finally the expression of such ideas by words. "Fundamental legal technic" will be most successful in its operations in the degree in which it brings about the most complete correspondence between those three steps-facts, ideas, verbal expression-so as to develop an actually living law. It will fail and miss its goal when it separates the expression from the idea to be expressed, as if it had a value of its own. In this connection, it is not without interest to note that legal technic has an inveterate tendency to become largely a question of terminology, as language is the most characteristic technical instrument of the entire life of society.
Furthermore, it goes without saying that legal technic in general is bound, even more than the other elements of the legal organism, to develop and undergo changes in accordance with the successive changes of conditions in social life. For instance, it is clear that our law, although it derives certain of its methods from the labors of Roman jurisconsults, has actually been obliged to rejuvenate these, as it were, and to some extent actually to renew them entirely. On examination one can easily discover how certain forms, in their course of historical transformation, have not so much disappeared from the legal life of modern times as undergone an essential change, and often are applied in ways quite different from those that had to be abandoned. Consider, for instance, commercial papers, instruments payable to bearer, registers of titles to land. Moreover, the technic of a body of law based principally on statutes cannot be the same as that of a law consisting principally of customs. More particularly, the introduction of codifications is likely to bring about a completely novel set of principles relating to legal technic, and even these changes will vary according to the kind of codification. Notably, the codifications actually existing among modern nations are likely to require quite a different sort of technic from that which is appropriate to law built upon the Code of Justinian.
While all this is true in general of all the branches of legal technic, it is especially so with regard to legislative technic. We must now turn to that, so as to define its essential character, trace the various elements of which it is composed, and thereby be enabled to understand clearly the problem to which it gives rise.