Although these problems are rarely studied by themselves, yet the subject itself has not escaped the attention of thinkers who have devoted themselves to the art of legislation in general.
It should be stated, however, that this theory of legislative technic, as it may be called, has become more and more enveloped in detail. The authors who have dealt with the subject were at first interested in the most general aspects, but gradually writers have come down to the consideration of more and more special details. Thus Bacon and Montesquieu dispose of this subject with a few easily-made observations. Bentham, on the other hand, examines pretty thoroughly the various technical aspects of codification and the general nature of legislation in its various forms. He has clear notions regarding the external qualities of a statutory text; he does not even pass by the question of technical terms.
At a later time, the question of the drawing of codifying statutes was taken up again, in France, in a broad but unfortunately a little metaphysical and sometimes over-emphatic manner by Rousset. His opinions were strictly systematic and perhaps a little too confidently expressed, so that no doubt on account of its conspicuous faults the work found but scanty consideration. Yet it has the merit of pointing out the importance attaching to the proper construction of the legislative sentences and of rigorous adherence to the terminology adopted. However, this side of the subject, which to-day attracts most attention, was not seen clearly until the critics and commentators of the German Civil Code of 1896 began their work. For these, the question of legislative technic seemed to be almost altogether a question of the wording of clauses and the choice of the proper words.
It would seem, however, that at the present day the most general questions concerning the technic of codes of law, such as we have analyzed above, are sufficiently solved; yet this has been done far less by rational discussion than by the results of practical experience. Consequently we have before us a number of admitted principles, about which it would be vain to dispute further, but which may on the contrary serve as the starting points of further research.
Notably, we no longer doubt the expediency of extensive codification, superseding all preexisting rules and comprising all the positive law of the country, divided into a number of codes. These codes should be cleared of every extra-juridical element, and the character of each is pretty definitely fixed by the traditions of the profession in Europe. That tradition implies a peculiar form, with various divisions and subdivisions, and the lowest subdivisions arranged in a single numerical series. At the foundation of the whole system will be found a civil code, which will necessarily be the core of the legal system of the country. On the other hand, hardly anybody would, to-day, believe with Bentham in the usefulness of an official commentary on the law, while nearly everybody would agree with Bacon that a code should contain nothing but rules, meaning thereby not only the direct legal commands but also all provisions calculated to make the law more easily comprehended by private citizens, officials, and judges. All this should be done in the briefest possible form compatible with clearness and completeness.
Thus the general outline of modern legislative labors is in a way established - "ne varietur." Within these broad lines, however, there is room for many and varied designs. Their accomplishment constitutes, especially from the French point of view, the living and breathing part of the problem of legislative technic. What has been definitely settled has transformed the nature of these questions, but not done away with them. While the general questions of the wisdom of codification, and of the form it ought to take, may be considered as settled, a new and urgent problem arises by reason of the age of some of the codes which have contributed most to the settlement. This is especially true of our own Civil Code of 1804, and the question is that of revision. This problem presents some difficulties of legislative technic under quite a new aspect. These refer, e.g., to the questions whether such revision should proceed piecemeal or in large portions, whether there should be an entirely new code or whether the text should merely be brought up to date, and in what order the revision of the various codes should be taken up. Not to speak of other subjects, any examination of the last-named questions will resuscitate the discussions regarding the proper plan and scope of a civil code.
Leaving aside altogether the substance of the law, and considering merely the form most adapted to modern conditions, we shall find most serious doubts existing regarding the form of legal commands that should be adopted, regarding the kind of diction - ordinary or technical - in which the code should be written, the most apt phrases to express its meaning, and regarding the choice of expressions and the most appropriate terminology.
One will easily see, moreover, that all these questions depend to a great extent on the rank assigned to the written law within the whole body of the law of our own time. According as we believe that it should more and more dominate and include the entire field, we are likely to follow one or the other of two tendencies. We may characterize these by few words: the one tendency requires rigorous and close technic by which it seeks to express the intention of the legislator as definitely as possible; the other is satisfied with an easier and elastic technic so that the statutory law is hardly distinguishable from other legal rules.
When the matter is put in this way, it becomes fruitless to discuss technic further by mere abstract reasoning; its principles must now be ascertained by the observation of facts, and especially by the experience of the more recent past.