The purpose of this study, as we have said, should be to present, in their entirety and along broad lines, all the legal relationships which to-day are approached separately as isolated branches. Such a study of the whole is indispensable to gain a just idea of the true nature of legal relationships and of the transformations which they have undergone or are undergoing, and to secure objective rules by which to solve the problems of the future.
First, then, it is important to reconstruct legal relationships in their present forms, just as changing civilization has left them, and then to derive an objective method of interpretation.
1:Reconstruction of Civil Institutions. Civil law, interwoven, as we have shown it to be, with other branches of positive law, is constantly being transformed. Few, indeed, are the institutions that have remained what they were at the time of the Code, or that have disappeared since then. Yet almost all of them, in letter or spirit, perpetuate certain traits of the old law along with others that are new and irreconcilable. We must reconstruct or reassemble these institutions, as altered, so as to show them in their true aspects. Modifying elements should be separated out so as to emphasize their extraneous character, which is not apparent to-day because of the present defective system of teaching the Codes. Institutions so reconstructed will not possess the clearness, permanence, and precision that they enjoyed under the Code. Their type will appear somewhat hybrid. But this obviously will be the fault neither of interpretation nor its method, but of the changes that legislation has undergone.
This first principle disposed of - and it can hardly be disputed by anyone, even by those who cling most tenaciously to respect for the letter of the law - let us examine how this reconstruction is to be effected. For, under guise of reconstruction, the judge or teacher must not be allowed to modify at will the character of legal institutions. In other words, we must search for objective tests and principles by which legal interpretation may successfully accomplish its function.
2:Method of Reconstruction. To make such a reconstruction, we should begin by a general introduction setting forth the principles underlying the codification, the ideas prompting the legislator, and the divisions of his work. We should then study the principal institutions governed by the Code, which, by their importance, dominate the whole body of the civil law: in particular, legal personality, capacity, property, and the juridical act.
This general introduction will be of the highest importance in the study of civil law,10 whose mechanism and true scope will be made comprehensible thereby.11 The contents of the Code will be taken up in their logical relation to one another, rather than scattered as we now find them. Such an arrangement, quite different from that of the Code, will have the advantage of teaching the relation between certain subjects which are not usually brought together, or which are analyzed only fragmentarily, in the belief that each phase belongs to a different and special branch of the law.
Thus everything relating to property will be studied in one general logical synthesis. Its different forms will be shown and the branch of the law to which each belongs. The distinguishing elements of each particular branch of property (industrial, commercial, literary, artistic, etc.) will be considered at more or less length, and finally property in its ordinary sense - movables and immovables - will be taken up. In the same way all the civil12 institutions constituting rights in the
10 German jurists have never lost interest in this introductory study, even since the new Civil Code, and numerous works are devoted to it. There is in France up to the present time but one work upon the subject, Capitant, "Introduction a l'etude du droit civil" (Paris, 2d ed., 1904).
111 The problem of the best manner of dividing the curriculum among the three years of the bachelor's degree would thus be answered. The difficulty arises from the impossibility of studying certain institutions without having first had a general view of all others. At the present time there is under consideration, in the law schools of the French universities, a reform proposed by Gasson and Villey to the "Superior Council of Public Instruction."
12 [Civil as opposed to commercial.-Transl.] property of others, to-day taken up one by one in disregard of the relations naturally uniting them, will be studied together.
The study of each institution will be introduced by a glance at its different historical phases; but to the history of law will be left the task of uncovering its evolution, because the purpose of such a review would be merely to make clear the past importance of the institution. The next step would be to deduce the juridical synthesis of the institution, as it has evolved from the legislature and the courts. Its precise boundaries would be marked off, without proposing by such a synthesis to anticipate all possible difficulties, as has been the mistaken effort of all authors who have adopted this method.
A synthesis thus reached without preconceived purpose or idea does not admit of the criticism by Geny, who declared that in every logical synthesis there is an implied postulate that all positive law is written law.13 The method just explained is, in reality, nothing more than the application of scientific unity to law, and it alone permits of an exact conception of institutions, their purposes, scope, and relation one to another.
3: Old and New Methods Contrasted. The system, as we have so far sketched it, is not new. Adopted by Zachariae, it was further developed by Aubry and Rau, and perfected by Bufnoir.14
But these authors erred in stopping short at the juridical synthesis. They regarded institutions as fixed, and devoted no time to observing the continuous modifications which they have undergone and are undergoing and which constitute their very life. Just there lies the new element which we would introduce into the study of law. It must be freed from the doctrinal discussion of scholastic questions, such as to-day fill precious hours of the general courses. Such details will be material for the special optional courses offered to those who are interested in that sort of study. The juridical synthesis once concluded, attention must be turned to the modifications which social phenomena have effected directly or indirectly, and to the search for the points of approach or divergence of the various branches of the law relating to a given institution. In this way each institution will be seen under its true physiognomy.
13Geny, "Methode d'interpretation et sources en droit prive positif," no. 25 [translated ante in this volume].
14 The system of Aubry and Rau is subject to criticism in that its introductory part is not sufficiently elaborated. We submitted a program of study of civil law as indicated in the text to the Law School of the University of Chile, which adopted it; inserted in the author's "La Reforme des etudes juridiques et politiques" (Spanish, Santiago, Chile, 1901), pp. 46-83.
This kind of reconstruction, when it is the fruit of observation, based upon the social sciences so as to retain a truly scientific character, cannot be accused of being arbitrary or of necessarily flowing from the purely subjective mind of the person who constructs it. No doubt it does possess a personal element. But is not the interpretation of the most categorical rule of law subject to the personal equation? Such reconstructions lose nothing of their value thereby, since their basis, that is to say the social facts shaping them, are in a real sense objective. To refuse to adopt this method in the study of institutions, on the ground that it creates confusion and mingles different branches of the law, is to garble these institutions and to present them in a form that they do not possess in reality. It need hardly be added that, as society is constantly changing, these synthetic studies must be constantly retouched so that they may be kept up-to-date.
These reconstructions of the law will be valuable references for the courts; and jurists will be filling their proper mission by enlightening the court rather than by engaging in postmortem disputation.
4: Results. Our purpose is to disengage the study of law from the details, controversies, and syllogisms encumbering it, and to restore its true character as a social science by examining legal institutions, not at any given moment, as, for instance, when they become the subject of legislation, but throughout the whole course of their evolution up to their present state. It will be more evident then that this very evolution is imposed by the development of civilization and that legislation cannot anticipate all the problems which each fresh day of social existence gives rise to. The codes will not be considered as complete and final regulations of every subject, but simply as reflecting them at a given period. They will be merely a point of departure from which institutions will be observed to continue developing.
Now these reconstructions should be completed by brief references to comparative legislation, which will bring together the more general traits of the same institutions in the four groups of countries into which they are naturally classified. This comparison, as part of the general course, will aim merely at emphasizing the relativity of institutions (which, indeed, are never identical at different times or in different countries), and at providing a legislative guide by reference to foreign legislation.
Lastly, institutions must be studied by the critical method, making use of the political, economic, and social sciences, especially statistics, and even the data furnished by medical jurisprudence.15 So too, in certain matters the needs and aims of determinate groups should be explained. Especially is this true of the socialist group, because their ambitions are not ephemeral but permanent; each day they strengthen rather than decline.16
15 On marriage. cf.Brouardel, "Le Mariage" (Paris, 1899).