Article by Shael Herman
This article is an inquiry into the nature and function of rules and the language of which they are made. It addresses the task of the code drafter, the rulemaker par excellence, and, though it focuses on civil code drafting, it may embrace other efforts to write organic legislation. The first section presents postulates about the function of rules in general and then narrows to a consideration of some problems peculiar to the interpretation of legal rules. It closes with a discussion of the tension between two distinct components of a legal rule, its teleology (purpose) and its command element. The second section concerns the virtues and drawbacks of a rule-making approach that attaches the highest premium to conceptual precision in rule formulation. The third section, by means of a dialogue concerning hypothetical code articles on contractual capacity, develops the code drafter's dilemma in the face of concurrent demands for conceptual precision and satisfaction of other legitimate social needs. This section also treats most directly the problems of drafting and interpreting articles. The last section traces the problems of interpretation into some assumptions about language associated with the Enlightenment tradition of codification. The article concludes with remarks about realistic prospects for a new civil code.
About the Author
Shael Herman. Associate Professor, Loyola Law School; Visiting Professor, Tulane Law School (1977-1978); Research Associate to Professor Saul Litvinoff, Reporter on Revision of Obligations, Louisiana State Law Institute. B.A. 1964, M.A. 1965, J.D. 1969, Tulane University.
Citation
52 Tul. L. Rev. 115 (1977)