This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The idea of a Code that should mold into harmony and render uniform the civil law of France is met with in definite form from the very beginnings of the Revolution. In its session of July 5, 1790, the Constituent Assembly passed a resolution to the effect that "the civil law shall be revised and reformed by the legislators and a general code of simple, clear, and constitutional laws be adopted." (Comp. Constitution of 1791, Title I, towards the end. See also Constitution of 1793, section 85.) This proposition was not lost sight of by any of the Revolutionary assemblies, each of which proved its desire to approach the task in a methodical manner by appointing some committee composed of its own members for that purpose: the committee on jurisprudence in the Constitutional Assembly, the committee on civil and criminal legislation in the Legislative Assembly, the committee on legislation in the Convention. Later, the Council of Five Hundred had its commission for the classification of laws, for which the section for legislation, the Civil Code and the police was presently substituted, while the Council of Ancients had a section for the Civil Code. Yet all these assemblies were so taken up with political difficulties that the best they could do was to prepare, principally by means of partial reforms, for the task they had proposed to themselves. Moreover, we are too scantily informed regarding the precise manner in which the most important statutes of this period were worked out, to draw therefrom definite inferences concerning the technical methods they more or less consciously employed in their work.
We are able, however, to gather some evidence, still meager enough, by examining the bills for a Civil Code proper which were prepared under the Convention, the Directory, and the Provisional Consular Commission of the Year VIII. There are three drafts of an entire code by Cambaceres, and another incomplete one by Jacqueminot. The fact that these bills were caused to be drawn is sufficient to show that the proper scope of such a code was by that time well understood, and that the matters which ought to be included therein were easily separated from those which more properly could be treated in separate statutes. More than that, the first attempts already show the principal outlines of the future work, and the various subdivisions are already firmly established.
In addition to these general impressions, we find in the reports of Cambaceres on his successive bills a number of observations on more specific points of technic. Thus, in introducing his first bill in the Convention, he insists on the necessity for a small number of laws with very clear provisions, and intimates that this double "desideratum" may be obtained by means of productive principles and their unfolding in such a maner as to leave room for but few questions to arise. The same idea is again found in his speech in support of his third bill, before the Council of Five Hundred. It seems that his idea did not fail to awaken an echo in the Commission for the Classification of Laws. At the same time Cambaceres maintained that he desired to banish from his work the systematic spirit of scholasticism and to follow nothing but nature. Accordingly, in the report on the third bill, he restricts the business of the legislator to "disposing, arranging, and combining the social elements." However, if one studies the text of Cambaceres' bills with a view to analyzing their effective technical form, one cannot help coming to the conclusion that under all the limpidity and ease of his style one has to deal with a mind with an essentially systematizing inclination. This shows itself especially in the two bills introduced in the Convention, and with particular exuberance in the first one, which bristles with definitions, reasons for legal provisions, illustrations for the application of such provisions, and other doctrinal statements, so as to create the impression that one is reading a legal treatise put into the form of statutory sections. This impression becomes a little less distinct when one reads the third bill drawn by Cambaceres, where the practical point of view becomes more pronounced, although no very striking difference of the technical treatment can be observed even there. The synopsis of the report submitted with it to the Council of Five Hundred adds nothing to the stock of methodological considerations except that the various portions were put together and that the idea was suggested of first adopting an outline of the bases on which the new legislation was to be built.
So far as it goes, the Jacqueminot bill foreshadows still more closely the future Civil Code, although it does not show the same firm hand in drafting and editing as the latter.
Presently, the resolution of the 24th Thermidor of the Year VIII established a definite plan according to which the final work was to proceed, and outlined clearly the order in which the various subjects to be included were to be arranged.
The draft of the Year VIII, in the form in which it came back from the Commission appointed by the Government, recalls the Cambaceres bills by its didactic character, its philosophical rather than practical tendencies, its sometimes rather abstract definitions, and its minute classification. It seems also to be obsessed by the desire for completeness, and in order to approach this ideal explanations are multiplied, and yet the positive solutions of questions likely to arise are not increased thereby.
Yet this draft, which was no doubt of necessity arrived at by compromises between the divergent views of the different members of the Commission, was notably distinguished by the preliminary discussions from the pen of the classic and judicious Portalis regarding the technical form of the proposed code. Portalis was fully imbued with the influence of the "Esprit des Lois," yet ventured on proper occasion to correct ideas that were not well worked out therein. He was careful never to entertain extreme opinions, and kept himself willingly in the middle between speculation and mere rule-of-thumb, which is so valuable a quality of the French mind. In this expose of the principles guiding the work, Portalis enunciated a number of truths which could not but impress everybody by their simplicity and even self-evident appearance. In default of very definite outlines and a clearly predetermined scheme, these rules were sufficient to give to the work of drafting a general direction, corresponding to the essential needs of the moment, and yet capable of adapting itself to the inevitable modifications required in the future. While he points out the dangers of an excessive simplification of the laws, he insists still more on the point that the legislator cannot foresee all cases that will arise. He draws up his program, so to speak, in the following terms: "The office of the statute is to fix in large outline the general rules of law; to establish principles that will be fruitful of con-sequences, but not to descend into the detail of all questions that may possibly arise on each subject. . . It would be a mistake to imagine that any body of statutes can foresee all possible cases and be at the same time comprehensible to the average citizen." Moreover, one principal purpose of the author of this famous '"Discours" is to separate clearly the limited sphere of the statute from the almost infinite domain which must necessarily be left to the labors of jurists and especially to legal science with its multitude of distinctions and adaptations. From all this results the following striking conclusion:
There is a science for legislators, as there is one for judges. One does not resemble the other. The science of the legislator seeks to find in each subject-matter the principles most favorable to the public good. The science of the courts teaches how to apply these principles, to let them branch out, to extend them, in a wise and reasonable manner, to the claims of the parties, to study the spirit of the law where the letter would kill, and not to expose oneself to the danger of being alternately a slave and a rebel, or to disobey from a spirit of servility.
These fundamental principles were again stated by Portalis in a more condensed form in the two explanatory reports which he appended to the preliminary title of the draft Civil Code, and also in the "Discours," which he published on the Act of the 30th Vent6se of the Year VIII, by which the Code was finally enacted. They seem to be the key which unlocks the spirit of the entire work, so far as the technical side is concerned. It does not appear that the observations on the bill, made by the various judicial bodies, pointed out anything particularly new in this regard, although they did show a number of omissions and inaccuracies. As far as the technical side goes, they merely suggested a few amendments, all in the direction of more practical provisions. In the somewhat spirited discussions on the first bill, the future preliminary title of the Code, there were some exchanges of opinions regarding the technical side, on the part of the orators in the Tribunate, that were interesting in themselves; but it is difficult to believe that these views, which were often more impassioned than judicious, and generally inspired by an impracticable radicalism that reminds one of the spirit dominating the Convention, could exercise any influence on the progress of the work at all comparable to the prestige of Portalis.
After all, we lack definite evidence to determine beyond doubt who it was that is responsible, to the greatest extent, for the final form of the work. Seeing, however, from the journal of the Council of State, how frequently the passages that had been criticized in the sessions of the Council were referred back to the legislative section to be redrawn, and in the absence of all documentary evidence regarding the proceedings of that section, I am tempted to venture the guess that this section, probably under the predominating influence of Portalis, had more than any other body to do with putting the bill into its final shape.
However that may be, the French Civil Code, in the form in which it was adopted by the decisive votes of the Legislative Body, exhibits as a whole a technical form peculiar to itself and, if not entirely new, yet bearing the stamp of originality. Although it may not be possible to describe this form in a few ready-made phrases, yet it will be feasible to point out a few of its most salient characteristics.