Page:Harvard Law Review Volume 32.djvu/165

NAPOLEON AND HIS CODE 129 ality. They purport to embrace within the compass of a single, small volume the law of a variety of subjects, each of which is treated under our legal system, in one or more portly tomes (not to mention statutes), such as Citizenship, Domestic Relations, Contracts, Torts, Real and Personal Property, Bailments, Liens, Wills, Intestate Succession, and many minor topics. Austin, the English analytical jurist, said: "The code must not be regarded as a body of law forming a sub- stantive whole, but as an index to an immense body of jurisprudence existing outside itself." But the dangers lurking in this method did not escape the pene- trating vision of Napoleon. Toward the close of the Council's de- liberations on the Code he said: "I often perceived that over-simplicity in legislation was the enemy of precision. It is impossible to make laws extremely simple without cutting the knot oftener than you untie it, and without leaving much to incertitude and arbitrariness." It must be remembered, moreover, that the Latin theory of legislative expression is directly opposed to the Anglo-Saxon. According to the former a code or statute should express only general principles and rules applicable to a group of cases, leaving the details to be worked out as they arise in specific instances. The Anglo-Saxon lawmaker too 'often essays the task (impossible of attainment) of providing for every contingency and including every case that might arise, meanwhile failing to express the general principle at all. The difference is analogous to that ex- isting between the early American state constitution, with its brief bill of rights and frame-work of government, and the latter-day instnmient which often goes far into the field of general legislation. There is much to be said in favor of each theory, but the differ- ence must be clearly understood before the French codes and their imitators can be appreciated. The Code has never lacked critics, however, though they are far less conspicuous than formerly. When under discussion before the Tribunate, as we have seen, it encountered serious and, some still think, well-grounded opposition, including, inter alia, two distinguished jurists, Andrieux and Simeon, the latter a brother- in-law of Portalis, one of the four draftsmen.