Code, Interpretation, System
Codifications were rampant throughout Europe in the nineteenth century. Faith in them was extreme, and the fervor of the commisÂsions and governments that set to work on them was as high as their optimistic expectations.
What happened in the realm of legislation was mirrored perfectly in the realm of doctrine. A “code” proposed in both its intent and its operation as a complete body of provisions opened the way to interpretation of a logical and formal nature. In the earliest experience of the use of national codes during the first half of the nineteenth century, this demand for logical and formal compreÂhensiveness had a connection with the definition of the jurist, the judge in particular, since such men were and felt themselves to be “serÂvants of the law.” The jurist, however, had neither the obligation nor the capacity to innovate, nor could he modify, amplify, or limit the dictates of the code or of individual laws, but was expected only to understand them and to enunciate their content and their meaning, retracing the legislator’s thoughts and coming to a faithful and “declarÂative” interpretation of the measure in question. These were the aims of the French school of exegesis, one of the chief spokesmen of which was Charles Demolombe. The French school concentrated exclusively on textual exegesis and refused consideration to the isolated datum.Totally different methods—the methods of the sistema iuris—were also attempted, in particular outside of France. Broader interpretaÂtions were used to create norms for cases not expressly provided for in the code; failure to do this, it was argued, would result in an incomÂplete code.
Analogy, extensive interpretation, and arguments a fortiori, a maiÂori, and following other modi arguendi in iure served, on the one hand, as aids to a refined intellectual gymnastics and, on the other, as a way to enlarge the existing legislative provisions and to fill in possiÂble lacunae.
The idea of a “system” was thus joined to the idea of the “code” because both notions promised completeness, certainty, and definitiveness to codified law and because both notions reinforced the bourgeoisie’s self-image as the dominant class in the modern national state.The juridical system displayed its true potential both in the univerÂsities—in the theoretical training of new jurists—and in the forensic world of judges and lawyers. The criteria of juridical hermeneutics and the descriptions of juridical institutions became “dogma”—that is, “truths” that were indisputable and that indeed went unchallenged in the last century and a great part of our own century and are still accepted and propagandized as “truths” by weary votaries and inexÂperienced back-country professors. This nineteenth-century method and its results are usually known as “juridical dogmatics.” For this school of thought, interpretation was divided into literal and substanÂtive. Its object must be the individual norm, considered in isolation. The single norm could be analyzed in relation to the historical cirÂcumstances that produced it (the so-called “historical interpretation,” which, parenthetically, bore no relation to the problem of the histor- icization of the law, which is something quite different) or in relation to the end or ends that it hypothesized and pursued. Interpretation must also consider the entire network of the “system” within which the individual provision was inserted. There were two reasons for this: first, each single provision reacted on the system, putting its elasÂticity to the test (that is, its capacity for including the greatest possible number of precepts), thereby contributing to shape the system; secÂond (and a mirror image of the first reason), the system in turn reÂacted upon the individual norm to orient the interpreter’s selection of possible meanings and his decision to pick one of those possible meanings as his own and as logically “true.”
Legal science thus applied a refined capacity for logic to its own self-fashioning, and it produced increasingly analytical and complex results.
It used abstraction to separate the “system” from social and political reality, because, in both the particular method by which that system was constructed and in that system itself, jurisprudence found the image of an order, the order of the hard-won stability of those who founded and shaped the system. When a class is victorious and gains domination over a society, as did the bourgeoisie during the nineteenth century, or when the absolutism of a sovereign or a dictaÂtor annuls or conceals social conflicts and the clashes and tensions among the various social groups, the space available for political acÂtion shrinks and the political import of every act and every thought is either passed over in silence, avoided, ignored, or eliminated. Those in power preach the uselessness of politics, while within the dominant social stratum (in the nineteenth century, the bourgeoisie) there deÂvelops an analogous but inverse lesson. At the same time the convicÂtion spreads that a complex of social relations, solidly constructed in defense of the role and the spaces that have been conquered, needs only to be “crystallized,” consolidated, and made juridically relevant and significant within the symmetry of an organic and complete “sysÂtem” of thought.The bourgeoisie expressed and defended itself with the “system” just as it had with the “code.” It achieved its most incisive action in the political sphere at the precise moment that it removed society and politics from its intellectual range of observation.
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