The technic of legislation consists essentially of that group of mental processes by which the principal source of positive law among the moderns, to wit, written law, is made fit to serve its specific purpose, which is none other than that of directing human conduct towards the ultimate object of all legal order. In effect, what the legislator intends to do is to establish certain fixed, imperative, and categorical rules by which he may draw definite lines of demarcation between conflicting human interests and thereby insure the order necessary for the development of social life. Even taken by itself, the invention of such rules does, as we have seen above, constitute an exercise of legal technic. Legislative technic in a special sense, however, refers to the methods by which these legal rules are conceived and worked out, and this special sense we have in mind in the present place. It comprises a number of well-defined varieties, according to the character of the work in hand, and notably according to whether the work in hand is that of making isolated statutes or of adopting a full code of laws. Thus one might distinguish between the technic of fragmentary legislation and that of codification. The latter presents a number of notable peculiarities, such as those dealing with coordination of the various parts, recasting of existing provisions, and especially what might be called "legislative novation," that is, the questions arising out of the partial repeal of existing provisions. Beyond all these specific details, however, one may perceive the idea of a general technic relating to the written law, an idea comprising the entire task of establishing rules. This general technic is sufficiently distinct to become the subject of a separate study, into which the specific elements distinguishing codification from legislation in general need not enter except as accessories found by the way.
The details of this legislative technic prove to be infinitely copious and variegated, but it appears that practically all these mental processes may be classified in two series of ideas.
The first of these has to do with the names by which legislative power can be so organized as to perform its functions in harmony with the requirements of its appropriate purpose. For it will not suffice simply to say that this power must be constituted for the purpose of discovering and sanctioning the sort of law which is appropriate to a given people at a given time. One has to arrange for it the machinery necessary to enable it to formulate rules capable of governing social life efficaciously. This is particularly a matter of constitutional law, which in its nature must contain a considerable amount of what is properly technic. Especially when it is desired to pass measures of broad scope, and still more in the case of actual codifications, the ordinary parliamentary procedure will not suffice. A number of additional steps will be adopted, calculated to expedite the work of legislation and to insure homogeneous results: adoption of preliminary resolutions outlining the purpose and scope of the proposed legislation; the preparation of a draft, either by some person of eminence with the assistance of skillful counselors, or by an extra-parliamentary commission of few and specially expert members; the adoption of the draft as a whole, or in large portions, with as little discussion as possible, etc., etc. Briefly, we find a large group of legal devices peculiar to this branch of law. These constitute what I should propose to call the external mechanism of the technic of written legislation.
However, we are not at present considering this essentially accidental, variable, and arbitrary side of legislative technic. There is also an internal or substantial side to it which is the more profoundly important of the two, because it relates to the contents of the law itself, independently of the manner in which the legislature is constituted or pursues its labors. Leaving aside the consideration of the rational basis of this part of legal technic, which must be discovered by the science of sociology by starting from an ethical assumption, we may take up the question what form this technic should assume in order to cover and regulate as efficaciously as possible those jural relations which require statutory regulation. In other words, how can one make a statute or code which will work in accordance with the requirements of practical life?
The problem thus stated may be divided into a large number of separate questions all of which have in common this indubitable truth, that a statute is an expression of human thoughts by language, i.e. by words and groups of words, intended to produce in the minds of those to whom it is addressed intellectual processes similar to those which were present in the mind of the persons from whom the statute emanated. Speaking a little more broadly, one should say that a statute is a literary work of a particular kind, with a very specific purpose in view. Accordingly, nobody is likely to disagree with the proposition that a "good" statute or a "good" code must first of all exhibit those qualities which every literary work ought to have, and which are addressed to the intelligence and the will rather than the imagination or the feeling: unity, order, precision, clearness.
Proceeding, however, with an analysis of the elements which make a statute adapted to its purpose, it seems that the law should be considered both with regard to the object it seeks to accomplish and the means which it employs for that purpose. Under this somewhat complicated aspect of the matter, two alternatives have been propounded. Is a statute the product of individual wills and consequently reflecting purely subjective conceptions, limited by a strictly individual horizon? Or, is it not rather evident that there is in it an element of collective life which reproduces more or less faithfully the manner in which a given society at a given time exists, and does it not therefore partake of the dynamic nature of every entity that is at bottom social? I do not believe, however, that the opposition between these two alternatives is insuperable. They are the result of differing points of view, and each is true for the particular relation in which it comprehends the statute. Considered in a profound sense, i.e. in its inner nature and as a part of the social world, the statute has issued from collective life and does not cease to be a part of it because it has passed through the brain of the lawmaker. The latter dare not with impunity even make light of the eminently sociological character of his work, which he must needs construct according to the experience of the past as well as in harmony with the needs of the moment and in anticipation of the new exigencies which the future will present. If, however, one sees in the statute rather the means of giving to the human will the precise and firm direction of which it stands in need; if one considers it no longer merely as the expression of a social fact but as a method intended to adapt human conduct to a given end; and especially when one asks himself in what form it can best attain that sureness of effect which principally justifies its claim of being a source of positive law, - then, it seems to me, we shall be compelled to treat it primarily as the act of a determined will, tending, by means of the sanctions with which it is endowed, to impose itself on other wills in the most adequate manner possible, by means of human speech and all the resources language has at its disposal.
Now, this latter point of view cannot but be most preponderant in the conception of legislative technic. I declare that I cannot well see by what miracle of self-effacement one can require a legislator to remove from the work he performs the inevitable imprint of his own personality, and to become the strictly passive interpreter of that very vague collective entity, society. That is what a strictly sociological conception of statute law would mean. Moreover, the legislator could not define the intentions of society except by molding them by his own individual will. In spite of all fictions, the sense and meaning of the text is derived, so far as that can be traced at all, exclusively from such individual wills. No doubt, even from this point of view the author of a statute must not forget that his provisions, being intended to regulate collective life, which is complex and changeable, will fail of their purpose if they cannot adapt themselves to all social transformations, variations, and developments. Yet it is no less true, as he desires and must desire an immediately useful and practical effect, that the legislator must first direct his energies to expressing the action which he wishes to induce in those subject to his law with the greatest exactitude, while at the same time he tries to insure the greatest safety for their interests. And the various parts of the technic of written law can be determined only with these considerations held firmly in mind.