This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The very first glance at the French Civil Code, which was finally adopted by the Law of the 30th Vent6se of the Year XII (March 21, 1801) will lead us to assert without hesitation that its draftsmen hardly had in mind a seriously considered and constantly applied technical principle. However, instead of a legislative method consciously pursued and clearly defined, we shall find in the easily flowing, lucid, and simple provisions of our civil code a sort of unconscious technic. Its origin dates far back, to the ancient books of customs, the treatises of the old legal writers, and especially the royal ordinances and still more the acts passed during the Revolution. Old as it is, this technic becomes truly new under the form-giving strokes of the legal genius of modern France. It is true that it may appear imperfect and antiquated to us, yet it has undergone, not without success, the test of practical experience. It certainly does not seem - quite the contrary - as if the products of more recent French legislation were superior to it. It will not be without interest to attempt the tracing of its principal features.
In doing so, I shall intentionally neglect almost altogether what (under the terminology outlined above) I have called the outward mechanism of the legislative technic of the Civil Code, because it is dependent on the constitutional machinery of which the details are sufficiently well-known. I shall merely recall to mind that the draft was first prepared by a commission of four draftsmen, of practical experience, appointed by the Government; that the text was then worked out in a diligent, meticulous, and careful manner by the Council of State, with the legislative section of that body doing the principal work of drafting; that it was then revised by the Tribunate, which at first gave merely negative criticisms but afterwards became, through its legislative section, an active collaborator; and that it was finally submitted to the vote of the Legislative Body, where further amendment was still in order.2
Here I shall limit myself to a consideration of the legislative technic which was the result of the work of all these bodies on what I have called above its internal or substantial side, and to a search for its historical sources; and I shall also trace how its growth is apparent
2 [For a fuller account of the legislative history of the Code, see the chapter by Professor Planiol, in "General Survey of Continental Legal History" (Boston, 1912), being vol. i of the Continental Legal History Series.-Ed.] in the preparatory labors, and finally show how it becomes apparent in the final form of the Code of 1804. Sec. 7. Historical Sources of the Technic of the French Civil Code. It is well known that during the later times of the Monarchy, and especially from the reign of Louis XIV, the form of the royal ordinances had become distinguished for lucidity, accuracy, and completeness. Thereby a special legislative style appropriate to the work of codification was foreshadowed and to some extent created. For one thing, the most notable of these ordinances, among them some having to do particularly with the ordinary private law, embraced a number of subjects which they attempted to regulate in a rational and logical order. Furthermore, the text of these laws, compared with that of the customs or the more ancient ordinances, showed a manifest effort to grasp the realities of the subject of which these laws treated, and to subject them to closely knitted rules. In fact, important provisions of some of these ordinances could be inserted directly as they stood into the final form of the Civil Code. Not to speak of numerous sections of the title relating to the civil status (especially sections 40, 41, 43, 46, 52, 57, 79, 81), which were taken, with a few amendments, from the Ordinance of April, 1667, and the Declaration of April 9, 1736, or some provisions of the Edict of June, 1771, which were inserted with barely a few verbal changes in sections 2191-6 of the Civil Code, it is well known that whole portions of the Code are borrowed directly from earlier regulations. Thus the rules regarding the legal form and the irrevocability of donations "inter vivos" were taken from the Ordinance of February, 1731 (sections 931, 932, 934, 935, 937, 939, 941-6, 960-6, 1084, 1086, 1087 of the Civil Code); the formalities of a will from the Ordinance of August, 1735 (sections
1051-7 of the Civil Code); the provisions relating to substitutions from the Ordinance of August, 1747 (sections 1051-74, Civil Code). Some of these old provisions have been taken over almost or quite word for word (e.g. sections 931, 944-6, 960-6, 976-9). Although their somewhat antiquated diction detracts in no way from their clearness, yet they exhibit plain traces of their age, and when one compares them with those passages drawn personally by the same draftsman, one notices in the latter a form more easily written and more sure of itself.
The legislative style which can properly be called modern and is distinguished also on account of the simplicity of the concepts and the conciseness of the terms, appears already fully developed in the statutes passed during the Revolution. I could not say whether the Civil Code, looked at merely as a statute and disregarding the fact that it is codification, shows an appreciable progress over these. One might even say that, as an example, the Act of the eleventh Brumaire of the Year VII, not only in substance, but even as to form, is rather better than otherwise, compared to the corresponding provisions in the title of the Code Napoleon relating to liens and mortgages. In other words, the legislative technic of modern French law, which seems to have reached its highest point of development in the Civil Code, may be said to date from the Revolutionary era.
Aside, however, from earlier legislative acts, books of customs, royal ordinances, etc., may one not find a higher and more general foundation to explain the evenness and uniform excellence of that technic?
Assuredly, the works of certain great lawyers of the last period of the Monarchy, especially those of Domat, d'Aguesseau, and Pothier, which may be said to represent the classical spirit of French jurisprudence, could not but do their share in the evolution of that legislative technic which became a definite quality of France toward the end of the 1700s. Not only did the authors of the Civil Code find the formulation of certain provisions all ready-made in the judicial opinions of Pothier, but one may well say that the lucidity of that great jurist, with his eminently popular, simple, clear-cut style that has rid itself of all useless scientific ballast, has to a great extent entered into their own work. Yet I do not believe that this undeniable influence of a literature which is by its very purpose foreign to every specifically legislative conception, can suffice to explain the distinctly individual character possessed by our modern statutes and particularly exhibited in the Code Napoleon.
I am rather led to suspect here an influence emanating from the side of philosophy, and incline to see therein especially the effect of the master-mind of Montesquieu. For the "Esprit des Lois" did not merely trace the fundamental nature of positive law, in accordance with the principles set forth in so unforgettable a manner at the end of chapter iii (Dialecticism And Technicality: The Need Of Sociological Method) of the first book. Not to speak of the discussion by which Montesquieu showed how to weld simplicity of law and rigidity of legislative principles into harmony with the varying characters of differing forms of government (book iv, chapters i and iii), he also devoted a chapter, accurate notwithstanding its brevity, to "matters to observe in the drafting of laws" (chapter xvi of book xxix). Still more, this chapter, which is addressed, not without a trace of irony, to "those who have a mind broad enough to enable them to give laws to their own nation, or to a foreign one," does not simply contain recommendations of a technical order. Towards the end, he adds several remarks tending to show the connection there is between the provisions of the law and the nature of things itself, to which above all other considerations it ought to correspond. Principally, however, he gives us a number of "observations on the manner of making statutes" which are of such a character that we cannot pass them by in discussing the subject in which we are interested at present.
Apart from the enlightening and clear "illustrations," these counsels regarding the technic of legislation read as follows, in Montesquieu's own words:
The style of statutes should be concise.
It ought to be simple; a direct expression is always more easily understood than an indirect one.
It is essential that the words used in a statute should suggest the same ideas in all men.
After an idea has once been definitely expressed in a statute, it should not thereafter be referred to in vague terms.
In a statute, one must reason from realities to realities, and not from a reality to a metaphor, or from a metaphor to a reality.
Statutes must not be subtle; they are intended for people of average power of understanding; they are not a logical trick, but rather to be compared to the simple reason of a father of a family.
When a statute does not need exceptions, limitations, and qualifications, these ought not to be inserted; such details will create the need for new details.
Farther on, where he says that "when the reason for a statute is inserted therein, that reason ought to be adequate," it would seem that Montesquieu intends to express a general opinion opposed to the use of preambles in the text of a statute.
If one uses the term "legislative technic" in a somewhat broader sense, the following also may be quoted here: "As regards presumptions, the presumptions established by a statute should be valued more highly than those of a man; where the court indulges in presumptions, the judgment becomes arbitrary; where the statute establishes a presumption, it gives to the courts a fixed rule."
These precepts which are assuredly wise but just a little too general, seem to have been all the draftsmen of the Civil Code needed. To show how little they troubled themselves about a more closely reasoned theory of legislative technic, one needs but look for the hardly perceptible traces of the thought they gave to this matter to be found in the various works from which the final Code issued at last.