To give an account of these characteristics let us look at the work itself such as it came into being by the Act of the 30th Ventose, Year XII.
First of all, I do not believe that, in spite of a few imperfections of detail, anybody would deny that it possesses what might be called the literary qualities of a legislative act strictly adapted to its purpose, and filled with those great classical characteristics: unity, conciseness, lucidity. Nor will anybody fail to recognize in it the merit of having found, although it was the first work of its kind and had no authorized model to follow, the general formula for a modern code, in harmony with the political unity of the country, and at the same time adapted to the needs of modern civilization. By virtue of the Act of the 30th Ventose of the Year XII, the law of France was seen duly set out, cleared of almost all foreign matter, put into definite rules as a whole if not in all its parts, and condensed into an easily followed analytical order of books, titles, chapters, sections, and paragraphs. These form a single series of elementary legal provisions possessing each an independent individuality, complete in itself, with comparatively few references from one section to another. As to the arrangement of the grand divisions, that may be far from satisfactory to the scientific notions of the present day, and perhaps it may be difficult to find in it any well thought-out system at all, but it has at least the advantage of distributing the subject-matter of the law in large, coherent divisions calculated to avoid confusion and minimize the danger of repetition, and it justifies itself by giving satisfaction, on the whole, to the mass of practitioners.
Regarding the general form of their work, one may say that the authors of the Civil Code of 1804 succeeded better than any of their predecessors in giving to each provision the form of a single, practical command, cut loose from all merely theoretical considerations. They have followed to the letter the precept of L'Hospital, cited by the court of appeals of Lyon in its opinion on the bill: "The law commands; its business is not to instruct; and it has no need of trying to convince."
When we proceed to a more detailed scrutiny of the legislative style of the Code Napoleon, we may state first of all that it holds a prudent middle course between mere dry abstractions and the delusive attempt at covering all imaginable cases, both of which faults together produced such a strangely confusing result in the "Allge-meines Landrecht" of 1794, in Prussia, and are found, though in a less degree, also in the Austrian Civil Code of 1811. In the Civil Code of 1804, generalizations are few and cautious. Concrete applications are found more often than ideas. One can find but a few provisions alluding to fictions or theoretical conceptions (see e.g. sections 739 and 883), and then merely for the purpose of giving an explicit account of their consequences. Almost always the practical working of legal institutions is kept in view and regulated in a simple manner from the standpoint of their most common features, its provisions refer to those possible cases which are most likely to arise. In a word, it seems to have been the purpose of the authors of our Code to provide for those difficulties which they most often encountered in their own experience as practitioners, in a language as far as possible that all can understand, and without undertaking to state a plenitude of rules to prevent any possible surprises in future.
It is, moreover, very interesting to observe the variety of ways in which they arrive at their object. Most often they assume that the nature of a legal institution is known and restrict themselves to setting forth the legal consequences arising from its intrinsic nature or some accidental variation. Sometimes they resort to definition when that becomes necessary in order to make clear the legal nature of some state of facts. Occasionally they set out some theoretical conception, when that is necessary in order to elucidate certain essential characteristics of an institution. It happens also that they give but an abbreviated definition or even allow it to be merely implied, when the specific points to be regulated by that particular provision allow of such treatment. In one case (section 686) an apparently permissive provision contains within itself the whole doctrine of restrictions on the right to establish servitudes. In another place, two short and clear provisions complementing each other (sections 913 and 920) exhaust all important matters relating to our law regarding the parts of an inheritance not disposable by will. Elsewhere, by a double presumption (sections 2230, 2231, 2234), they throw most brilliant light on the practical working of the law regarding possession. In still other places, very simple provisions open a vista upon a whole course of legal developments. And in all that there is no trace of any painful consideration of the means by which the desired result could be achieved, and yet the result is nearly always obtained in the surest manner possible. Is not this, at bottom, the most remarkable technical characteristic of the French Civil Code of 1804, and also the characteristic least susceptible to detailed analysis, that without a consciously adopted method, without even any visible effort at reasoned and methodical editing, thanks to the natural knack and facile skill of its authors, it succeeded in clothing the most profound and pregnant juridical ideas in ordinary and popular language, and in making itself both beloved by the layman and appreciated by the lawyer?
Yet this happy ease of style could not but have a reverse side. The defect of that quality is a certain vagueness and sometimes ambiguity of terms, so that, for want of all definite outline, the legal commands are sometimes wavering and indecisive. A cursory examination of the various preparatory drafts mentioned above permits one to suspect that the draftsmen never troubled themselves at all regarding the principles of conscious and deliberate choice of turns of phrase and expressions that bordered on technical terminology. In fact, the various amendments of the text, whether suggested by the courts that were consulted on the bill of the Year VIII, or inserted as a result of discussions in the Council of State or the opinions of the Tribunate, never seem to be based on the idea of a homogeneous vocabulary, deliberately adopted in order to render the work consistent and exact in its application. It would be more than rash to assume that such an idea had underlain the process of more direct, detailed, and minute elaboration, of which we have no evidence, but which the work must have undergone, first on the part of the members of the Commission of the Year VIII, to some extent also in the legislative section of the Tribunate, but no doubt particularly in the legislative section of the Council of State.
To be sure, if one looks at the text of the statute itself with an eye to the precision of its diction, it is far from giving the impression of a style content with having come near to what it intended to say, or with choosing its words at random. One will find a certain tendency to avoid a number of terms calculated to evoke memories of an abhorred past-such as personal servitude, dominant and servient estates, etc. - or referring to institutions that were to be abolished: disinheritance, ground-rents. We shall also find a sort of natural logic in the method of choosing a terminology followed instinctively by the legislator. Undoubtedly, and one may say very fortunately, the greater part of the technical terms used in the Civil Code already had a clearly understood traditional meaning which was simply accepted. A few expressions, regarding the meaning of which according to prior usage there might have been some doubt, are clearly defined by the context. . . . Yet this is not always done successfully, as for instance with regard to the interruption of prescription in section 2257. Sometimes the legislator sees fit to fix the meaning by a legal definition - not always in the most exact manner, it must be admitted.
However, by the side of those certainly very valuable cases where the authors have felt rather than reasoned that a technical definition was necessary, their lack of general principles and well-reasoned views regarding the need of a terminology carefully adapted to their work has produced a number of omissions and obscurities that have been a considerable obstacle to those later called upon to interpret the code. . . . There are not a few words and phrases that bear not only a technical but also one or more other meanings, and in most such cases the text of the statutes does not enable us to tell which meaning is intended. . . . And just as the French legislator has not always maintained a certain and unvarying meaning of the words he employs, so he has, to an even greater extent, failed to make it possible for us to ascertain the precise scope of his provisions, or even that of the legal definitions in the manner in which he expresses them. It is not our intention here to present even in the most general outline an analysis of the diction and terminology of the Civil Code of 1804. Such an undertaking, which would imply as a preliminary work the compiling of a glossary analogous to that which Gradenwitz compiled with regard to the German Civil Code of 1896, might well tempt some day some lawyer of laborious disposition. That would go far beyond the bounds of our present study. Without going much further in this matter, it would seem that anybody sufficiently familiar with this principal work of our civil legislation will admit in his heart that aside from a comparatively limited stock of concepts which were already clearly understood and which they succeeded in expressing in particularly appropriate language, the authors of the Civil Code of 1804 have hardly been successful in their attempt to utilize popular notions, with all their vagueness and the inconsistencies of the vernacular, so as to formulate and express ideas which are absolutely necessary for the orderly arrangement and accurate working of the legal apparatus.
One may realize without difficulty that this easygoing technical method has had serious consequences for the effective influence of the work, if one but considers, on the one hand, how many disputes and verbal controversies have arisen regarding the interpretation of the text of our Civil Code, and on the other hand that in most cases it has been quite impossible to gather from the expression of the statute itself a plain conception of the terminology or the grammatical construction.
Does it follow from all this, however, that the form of our Civil Code is really inferior? Or, speaking more broadly, what is the practical value of the technic of the French Civil Code, the essential characteristics of which we have described above, and which we must contemplate rather as a whole in order to appreciate it properly? This inquiry we still have before us, and in entering upon it we approach the part of our subject which has the greatest living interest.