Article by Shael Herman
This paper, by means of a series of incomplete characterizations of the French Code civil, examines some philosophical assumptions underlying its conception. The characterizations are imperfect partly because of the limitations of language and partly because the code was envisioned as a master tool for a noble but impossible human project, the legislative management of history. The idea of such a project may be considered the product of either utopianism or overweening pride. Perhaps both terms are labels for the same attitude, whose dangers this paper will attempt to expose. Although my arguments are supported by examples from the French Code civil and the Louisiana Civil Code, students of another comprehensive codification, such as the Uniform Commercial Code, may find it instructive.
The first section briefly explains the idea of "formal realizability," a term coined by the German jurist, Rudolph von Jhering, to describe the conceptual precision of a legal rule. The section then concretizes this idea by showing its application in the judicial diagnosis of a sale. The second section demonstrates the relationship between formal realizability and Plato's theory of the forms, and it discusses the Platonism inherent in both the conception and interpretation of the Civil Code. The third section examines another ingredient in the conception of the Civil Code, the analytical method of Rene Descartes. The broad implication of this section is that legislators, at least in the French revolutionary tradition, had to become godlike to attempt their program of managing history. By means of brief references to some insights of Jean-Jacques Rousseau, whom Kant called the "Newton of the moral world," the section reveals the folly of men's belief that they could become absolute masters of history. The fourth section shows how the drafters of the Civil Code, seemingly aware of their folly, built mechanisms into the code to extend its life. The last section notes some contemporary philosophical pitfalls for contemporary drafters of a code modeled upon the French Code civil and suggests the attitude they might assume to sidestep these pitfalls.
About the Author
Shael Herman. Visiting Associate Professor, Tulane Law School; Associate Professor, Loyola Law School. B.A. 1964, M.A. 1965, J.D. 1969, Tulane University. This article is respectfully dedicated to Professor Ferdinand F. Stone on his retirement from the faculty of Tulane Law School and to Professor Mitchell Franklin on the occasion of Tulane University's conferral upon him of an honorary LL.D.
This article constitutes a small chapter in the philosophy of the Enlightenment and is heavily influenced by E. Cassirer, The Philosophy of the Enlightenment (F. Koelln & J. Pettegrove trans. 1951), and S. Rosen, Nihilism: A Philosophical Essay (1969).
Citation
53 Tul. L. Rev. 380 (1979)