Those who would reform existing codes look only at the problem of the code's contents. Three groups of theories exist upon the subject, founded ordinarily upon economic and social considerations, susceptible of many shades of difference according to the individuality expounding them.
58 A proposal to codify private international law was presented to the Second Pan-American Conference, which met in the City of Mexico in 1901-02. The author was Secretary of the Committee on International Law, and in that capacity drew up its report. He there set forth some of the ideas expressed in this section upon the principles which should underlie codification. The Conference approved the scheme of codification proposed. Cf. "Actes et documents de la deuxieme Conference pan-americaine" (Mexico, 1902), pp. 302-307.
1. The socialist would revolutionize all legal relationships by a profound change in the organization of the family and by suppressing the rights of property and of inheritance. A less radical tendency within the same school is represented by Menger's attack on the first draft of the German Civil Code. His criticism is indeed merited; but in part it is exaggerated - its objective is nothing less than to create privileges in favor of the working class.59 Another numerous contingent demand various specific social reforms which they consider, according to their particular temperament, necessary to meet the requirements of present society. In this contingent must be especially mentioned the Italian School.60 ,
2. The Italian School has attracted a large following. It proposes to reform the Code in line with the results of positive science, excluding everything metaphysical. The legislator is to study the evolution of law, by reference to the findings of anthropology and the social sciences, which are to instruct him upon the laws governing juridical phenomena. He must also have an accurate notion of the needs of society. Not until all these elements are brought together, declares this school, can there be produced what it terms a "Social Code of Private Law."
The method is too vague; the reforms advocated are either unacceptable, or else so obvious that there is no longer any call to argue them.61
59 Menger, "Le droit au produit integral du travail"; "Du Role social de la science du droit" in "Revue d'Economie Politique" (1896), pp. 62-86; and "L'Etat socialiste" (French trans, by Milhaud, Paris, 1904). For criticism of the doctrines of Menger, cf. Nani, "Le Socialisme dans le Code civil" (Turin, 1892).
60 Gianturco, "L'Individualisme et le socialisme dans le droit con-tractuel"; Salvioli, "LesDefauts sociaux du Code civil"; Polacco, "Fonc-tions sociales de la legislation civile moderne"; "Posada, "Le Droit et la question sociale," in "Revue Internationale de Sociologie," vol. vi, pp. 225-250. [Posada is a Spanish jurist.] and pt. iii; D'Aguanno, "La Reforme integrate de la 16gislation civile," especially chaps, ii, iv; "Genese et evolution du droit civil" (Spanish ed.), chaps, iv, viii, xii, xvi, xx; Cogliolo, "La theorie de l'evolution darwiniste dans le droit prive."
61 Upon this School and its reforms, cf. Cimbali, "L'Etude du droit civil dans les Etats modernes" (1881), especially pt. i, chaps, ii, iii, iv.
3. A last school would base future legislation upon the one principle of solidarity, which is to dominate private law, because it is the foundation of the whole social organism. The idea is now old. It was clearly formulated by the socialists and philosophers of the first half of the 1800s, especially by Fourier and his school, who regarded solidarity as a "law of nature." The principle has spread far and wide to-day, thanks to our progress in moral ideas, which tend to make the general prevail over the personal consideration. But while we are more and more agreed that the law should be imbued with the idea of solidarity, this idea remains as yet vague, and no one has yet clearly shown in what sense it is to guide the lawmaker. Some demand reform without claiming affiliation with any school.62 Many limit their demands to the fusion of the civil and commercial codes, on the ground that the privilege of a special law for merchants should be abolished. They cite as precedent of such fusion the Swiss uniform Code of Obligations, which governs all classes of persons without distinction of any sort.
1:Reforms Introduced by the German Civil Code. Turning now from theoretic proposals to realities, let us examine the governing ideas that have entered into modern codes, especially into the German Civil Code.
In the Second Congress of Criminal Anthropology, the following subject was proposed (question xii): "Anthropology in its application to legislation and to questions of civil law." Fioretti, reporting upon the question, expressly admitted that the application of anthropology to civil law was almost impossible; cf. "Actes du deuxieme Congres international d'anthropologie criminelle" (Lyon, 1890).
62 Batbie, a series of articles under title "Revision du code Napoleon," contributed to "Revue critique de legislation et de jurisprudence," vol. xxviii, pp. 125-162, 308-364; vol. xxix, pp. 116-167; and vol. xxx, pp. 50-64, 128-148, 213-231, 322-346, and 402-436.
This Code did not follow any one of the systems to which we referred. Nevertheless, it marks a reaction against that twofold individualism which is the backbone of all other codes. In the first place, it repudiates the individualism which always regards the human being as isolated. It devotes a large section to artificial persons63; their regulation is made to hang upon the formation of a common fund or capital, and is governed by the idea of the solidarity of the group. Furthermore, it also breached the old individualism by adopting two out of the four legal manifestations of solidarity. It does not, indeed, establish the principle of mutual assistance, though it does touch upon it in the law of master and servant; nor does it extend liability beyond the presence of actual culpability. In this respect the Code marks no progress; it has held to the traditional system of subjective culpability and has not ventured to establish that of objective social risk.
Yet it does recognize the other two manifestations of solidarity to a notable degree. Its regulations have considered social interest above the interest of isolated beings; notably it has adopted the maxim of the "misuse of rights" ("sic utere tuo ut alienum non laedas"). The Code devotes an entire section to the limitations on the exercise of rights, to self-defense and self-help.64 It accepts the theory of the misuse of rights,65 according to which "That exercise of a right which can only have the purpose of causing injury to another is unlawful." By this the judge may consider void and illegal every exercise of a right which transcends the limits set by good morals, equity, and an understanding of social relations.66 In several instances and under certain specified conditions he may modify a contract.
63 Book I, title ii, arts. 21-90.
64 Book I (General Principles), sec. vi.
65 Art. 226.
Lastly, to prevent the abuse of paternal and marital authority in the exercise of its rights or obligations, the Code creates an extended control over the family by the courts, a sort of supreme guardianship by the State over family matters, exercised by a judicial officer.
From all these innovations, the result is that the autonomy of the will has a very different r61e in the German Civil Code from that in the French Code and in other codes based frankly upon individualistic principles. The German Civil Code does indeed give a large place to the autonomy of the will; but that does not mean, as in the system of the other codes, that it always prevails, even when in conflict with the law. Most of the rules of the German Code, while not absolutely imperative, do not pretend for a moment to represent the intention of the parties, but to establish the supremacy of the will of the law. Agreements between individuals are made to produce the legal consequences which most conform to the policy which the law should follow, that is to say, those dictated by the requirements of equity and social justice. These consequences, it is true, may be set aside by common consent; but such a derogation must be clear and formal, otherwise the presumption rests with the rule of the law.67
The German Code, furthermore, looks to the individual to execute the law whenever the purpose of his act is expressly the exercise of a right within those fixed limits left open to his judgment. The individual is thus clothed with a jurisdiction which may be considered a discretionary power. But at the same time the German Code, in order to make clear that this function is conferred by law and not a subjective right, multiplies considerably those express and implied instances where the judge enjoys a discretionary power, allowing him to give each case an appropriate decision, and excusing him from applying a rule whose rigid universality would otherwise be imposed upon him.
66 Saleilles, "Introduction a l'etude du droit civil allemand," no. xi, and "Introduction" to French trans, of the German Civil Code, no. xviii; ibid., notes to arts. 226-231, vol. i, pp. 334-349.
67 Saleilles, "Introduction a letude du droit civil allemand," no. vi, especially pp. 44, 45, 51.
2:Limitations of the German Code. The German Civil Code accepted the idea of solidarity in law. But it did not penetrate deep; it established it in two aspects, but discarded it in two others.
While the Code may be criticized for this, it should not be blamed for not having ventured along social lines farther than it did. We must not forget that the present period is one of crisis and transition, when economic evolution is moving forward and is profoundly changing in consequence our social and juridical organization. It is not possible at such a moment to produce satisfactory legislation; the way for the transition must be prepared; radical and conservative opinion must be reconciled. The German Code necessarily felt, with respect to the clearness and breadth of its governing ideas, the influence of the social conditions of the period of transition when it appeared. It was a very different age from that of the French Code, which was one particularly favorable to clear-cut codification.
Though the new German Code left much to be desired in not fully accepting the principle of solidarity in law, the same may not be said of the specific institutions which it regulated, particularly those affected by the law of property. The reforms in this field conform to modern economic and social conditions. Everything relating to obligations,68 to rights in things, especially to possession, the manner of acquiring property, and of rights over the property of others,69 is dealt with in accord with the new needs of society. This is also true of the law of the family,70 and of inheritance.71
68 Book II.
Yet it must be admitted that in many instances an excess of logic has led the German legislator to decide questions in ways that cannot be justified upon any other grounds, and that in other instances he has not yet dared to break definitely with the traditional theories founded upon the Roman law.72