Judges and jurists have believed that, after codification, they did not possess the same powers of interpretation as before, under early French law or under Roman law. They believed that their only function was to apply the strict letter of the law, and to search for the intent of the legislator, in cases presenting novel problems, without a thought whether these new situations were susceptible of the same sort of regulation as that already provided by legislation. But we have also seen how, in the course of the 1800s, in spite of a superstitious regard for the letter of the law, they yet tried (timidly, it is true, under the guise of interpretation) to adjust codified law to the new exigencies of practice by rendering it more flexible, by expanding it or even by creating new rules. And lastly we saw how a few modern jurists hoped to realize a complete agreement between the codified law and the new social needs. They have created and boldly put forward a new conception of legal interpretation, by which jurists and judges may openly and frankly do what they accomplish to-day timidly and reluctantly.
Of all these authors Saleilles has made the most exhaustive and original examination of this conception, endeavoring to discover the objective elements of this new method of interpretation. In one of his essays17 he showed that in the interpretation of the law two considerations must be kept distinct: (a) the ripeness of conditions for transposition into a rule of law; (b) the method to be followed to effect the transposition. He takes the Roman law as the best model in these two regards, not only in the past but even at the present time.
16 Important from this point of view, Menger, "Etat socialiste" (French trans, by Milhaud, Paris, 1904).
17 Saleilles, "La Reforme de la license en droit," in "Revue Internationale de l'Enseignement" (Apr. 15, 1904), pp. 320-322.
1:Future Function of Interpretation. In our opinion, the problem of the adjustment of law to practical needs is not solved merely by a new method of interpretation. Legal institutions change in spite of codification. These modifications, therefore, must be studied in order to represent legal relationships in their veritable colors. After having studied these modifications, and the mode and the direction of their evolution, we may then properly derive a new conception, first, of the aim of interpretation, and second, of the ways by which that aim may be obtained, without being taxed with subjectivism.
The first of these considerations we have already discussed. The second consideration must now be approached. It naturally falls into two queries: What in the future is to be our conception of the function of interpretation? What shall be its methods?
As to the function of interpretation, it is impossible to follow the role of the Roman jurisconsult, as Saleilles proposes even to-day, because political and social conditions are wholly different from those of the Roman period. During the period of the Roman law, as also during the period prior to the French Code, the nature of legal relationships altered slowly and their transformation was uniform, so that the interpretation of that period could have but the one function, that of developing or rendering the rules of law more flexible. Consequently, logic was the only tool; with it were produced subtleties which masked the slow evolution going on beneath.
This method cannot serve to-day. Legal relationships are almost all changing with increasing rapidity. They are different from the relationships of the early law. This is an era of transition, beset with difficulties and doubts. The functions of interpretation, therefore, cannot be to subsume under existing legislative rules situations which are very different from those faced by the early law, situations such as the legislator would have regulated quite differently had he been obliged to meet them then. To-day its functions frankly must be to aid the evolution of institutions in the direction in which social phenomena are impelling them, solving the new cases that arise in harmony with that evolution.
This new conception of interpretation is not, therefore, arbitrary. It results rather from the study of social facts and their influence upon legal relationships; it is derived from social life itself, and to disregard it is to ignore society as a living organism.
2:Future Method of Interpretation. What shall be the method of interpretation under the new conception? Its function being such as we have just described, the problem can no longer be to circumscribe it by rules more or less exact, but solely to enable it to discover the direction in which the particular institution is developing. This may be done by undertaking the reconstruction of each institution in the way that we have already sketched.
All institutions are not passing through the same evolution. We must first realize that, contrary to the present rule and to common belief, no uniform method of interpretation can exist, and that we must have recourse to different rules corresponding to the different stages in the evolution of legal relationships. Thus, in the general study of the evolution of institutions, we have to consider those rare cases which, during the 1800s, did not change or changed very little; those that have been partially but not wholly modified, which form the great majority; those that have been completely transformed; and finally those that have sprung into existence since the Code and possess a different character from the institutions which it established.
The line of demarcation between these four classes of institutions is not easy to trace. But that is of minor importance. What we must know above all is the direction of their evolution, so that we may bring the interpretation of law into line.
In the first class, rules of law should be applied just as the legislator pronounced them. The traditional method of interpretation should be followed, because the fact that the institution has undergone no change shows clearly enough that its regulation needs no modification and that that provided by the legislator suffices. But, even in this case, what we must not lose sight of is that the aim of interpretation must never be, as has been the mistaken belief, to arrive at the intention of the legislature years ago, but, with due respect for the literal text of the law, to give it the meaning most in conformity with the present social needs.
In the second class, the law should no longer be interpreted according to the old-time rules or the general spirit of the early legislation, but according to the new tendencies apparent in the evolution of the institutions. These tendencies are not difficult to discover, for they are well revealed by the facts which effect the modification. Thus, for instance, questions relating to paternal or marital control should to-day be solved in the sense most favorable to liberty and the legal and economic independence of the wife or minor son, because this is the direction of the evolution of modern society. In order to see clearly the trend of an institution we must turn to the general characteristics which we have recognized in modern laws, because they portray the general direction in which institutions are progressing. The results of the study of comparative legislation in the particular subject must be consulted, because all countries are to-day witnessing the same phenomena and the tendency everywhere is to meet them in the same way.
The contract of hire of services is the most typical example of the third class, and also of the last class. Here legal relationships should be interpreted in the light of their new character and purpose, and not of the general principles of civil law, as has unfortunately been the rule so far.18
3: The Method is Objective. The method of interpretation, just described, is not so fixed or precise as the traditional rules. But it is a method with which we may well be content; for such stability and precision can be obtained only at the expense of the harmony which should always exist between a rule of law and the social need which it proposes to fill. It is less clear and precise than the traditional method, but it has, on the other hand, the necessary objective quality. While preventing the abuse of interpretation, it is yet elastic enough to permit of the imperceptible modification of the law, by constantly adjusting it to the normal development of institutions.
18 A very typical example, illustrating the inconveniences which may result from the adoption of any other system than the one we propose, is furnished by the judicial interpretation, notably of the Court of Cassation, given to the Act of December 27, 1890, supplementing article 1780 of the Civil Code. The purpose of this Act was to prevent the peremptory discharge of an employee by his master. Instead of being influenced by this purpose the Court of Cassation has for a long while admitted, in accordance with the general rules of civil law, that the master can, as a measure of regulation of his shop, derogate from the rule of the Act and deprive the employee of his right of compensation if dismissed without notice, because, having entered the shop, he is held to have accepted these conditions. The court thus applied to a new principle, the purpose of which was to limit liberty of contract, the old general rules of contract law.
It cannot be objected that the proposed method is not solidly anchored in the law, and that its only object is to substitute the dictates of equity and good conscience, as understood by the individual, for the rules of the Code. On the contrary, the reason of the rule, as we have already shown, lies in the transformations of the law as a living structure, and its one aim is to follow these transformations. Its foundations are, therefore, objective, and in a true sense tend to realize social justice without in the least disturbing or upsetting legal relationships.