Prof. Luigi Lacchè Section 4, second part

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1 Prof. Luigi Lacchè Section 4, second part To codify or not to codify?, that is the question – Critical approaches to codification. Academic year

2 Pellegrino Rossi ( ) He was born in Italy, Tuscany, studied Law in Bologna. In 1815 he went into exile in Geneva ( ) where he became an important scholar and politician. In 1833 he transferred in Paris ( ). He was murdered in 1848 while he was in Rome heading the new Pope’s government. An eclectic scholar, politician and diplomat, Rossi addressed many scientific matters, such as criminal law, economics, constitutional law. He was one of the most important European jurists of the first half of the nineteenth century.

3 In 1819 he started to teach in Geneva and founded with Etienne Dumont (scholar and translator in French of some Bentham’s works) the Journal Annales de législation et de jurisprudence ( ). In this Journal he published two important Essays: L’étude du droit Sur les principes dirigeans Rossi’s analysis is very interesting because it deals with the three main «Schools of law» active in Europe after the Restoration. We find again the issues addressed by Thibaut and Savigny in The questions are again: what is the vocation of the time? What visions about law? What is the method to adopt to establish a real national legal science?

4 Rossi examine the three scientific trends: “Nous pensons qu’il est surtout nécessaire de ne pas perdre de vue les trois diverses écoles de jurisprudence qui règnent actuellement en Europe, c’est-à-dire l’école exégètique, l’école historique, et l’école philosophique. Leur réunion seule peut amener la fusion du véritable esprit philosophique avec le positif du droit, moyennant la théorie des principes dirigéans… Ces écoles restant séparées, l’une perd de vue les choses et les principes pour ne s’occuper que de mots; la seconde prend pour la vie réelle les hommes et les choses qui ne sont plus; la troisième

5 ressemble à une jeunesse sans expérience, qui au milieu de ses riantes illusions, prend ses désirs pour ses règles et méprise ce qu’elle ne connaît pas. C’est un malheur très-réel que l’éloignement actuel de ces diverses écoles». (‘Sur les principes dirigéans’, pp ) école exégètique = Exegetic School This School is linked strictly to Napoleonic codes. It tied itself to a very limited doctrine of the sources of law. In its most radical form this doctrine only accepted law texts as sources of law.

6 A natural consequence of this was a narrow concept of interpretation
A natural consequence of this was a narrow concept of interpretation. To “interpret” means properly to apply the law texts, the single articles. Nothing more. As consequence of the “dogma” (myth) of the Enlightenment: the judge “bouche de la loi”. If the law is “right”, “expression de la volonté générale” (general will), clear, certain, there is not reason for interpretation. The Exegetic School – following French codes – developed in France, Belgium Netherlands, Italy… The main goal of the jurists was to “explain” the

7 CC in the light of the preparatory works or RL (as Karl Salomo Zachariae made to explain CC to his German readership). After 1808 new imperial faculties of law in France and abroad followed a legal training consisting of little more than the exposition or exegesis of the codes. During classes, the codes were interpreted and commented upon article by article. Then the works of the French or Belgian exegetes consisted of detailed commentaries on the CC and the other codes: Duranton, Troplong, Aubry, Rau (France), Zachariae (Germany), Laurent (Belgium), etc.

8 Ecole historique = The Historical School We have already considered Savigny and his ‘School’. We can understand how much this approach is far from the “Exegetes”. Savigny: Law is something related to a people, history, customs, flowing as a river… Law derives from the Volkgeist, refined step by step by jurists (Rechtswissenschaft) (see above)

9 Jeremy Bentham ( ) école philosophique = Bentham’s School (above all) or Rationalist School.

10 Jeremy Bentham was an English philosopher, jurist, and social reformer regarded as the founder of modern utilitarianism. Bentham defined as the "fundamental axiom" of his philosophy the principle that "it is the greatest happiness of the greatest number that is the measure of right and wrong". He became a leading theorist in Anglo- American philosophy of law, and a political radical whose ideas influenced the development of welfarism.

11 He was dedicated to the belief that justice, order, certainty, and simple procedure could be implanted permanently into any legal system through the adoption of a comprehensive but concise legal code. In his General View of a Complete Code of Laws, Bentham summarized his arguments against judge-made law, which, he stated, must always be ex post facto in that it is made by judges to apply to particular cases after they have arisen. He criticized heavily English common law tradition as judge-made law and unwritten law.

12 A legal code being an indispensable requirement of the principle of utility, it was, of course, essential that Bentham consider the content of such a code and the criteria to be employed in order to insure that every provision of the code would be in strict conformity with utility. cognoscibility accessibility completeness

13 He also offered four positive stylistic rules to be observed by the legislator drafting the code: (1) Avoid all technical or legal terms wherever possible; (2) if technical terms must be used, define them carefully in the body of the law; (3) define technical terms in "common and known words"; and (4) if the same idea is to be expressed more than once, express it in exactly the same words.

14 Pellegrino Rossi says that these three Schools represent three ways to consider the law, three visions about law. What's the problem then? “These schools remaining separate – Rossi observes -, one loses sight of things and principles to deal only with words (he refers to the Exegetic School); the second takes for real life men and things that are no longer (he refers to the Historical School); the third looks like an inexperienced youth, who, amid her laughing illusions, takes her desires for her rules and despises what it does not know (he refers to the

15 Philosophical School)
Philosophical School). It is a very real misfortune the present distance of these various schools”. This is the problem! If these scientific movements are isolated from each other, they make absolute their core-elements (exegesis; history; philosophical utilitarianism). So each orientation is partial, incomplete because it tends to exaggerate its features. Conversely, the motto chosen by Rossi for his Journal was: «Nous cultivons la science; nous ne servons aucun parti». (We cultivate the science; we do not serve any party).

16 Rossi wants to stay above the fight between the Schools
Rossi wants to stay above the fight between the Schools. But finally what is the solution, according to him? “Leur réunion seule peut amener la fusion du véritable esprit philosophique avec le positif du droit, moyennant la théorie des principes dirigéans” (“Their meeting alone can bring the fusion of the true philosophical spirit with the positive one of the law, by means of the theory of the general principles”)

17 «Chaque pays se trouve ainsi privé des avantages qui résulteraient de leur réunion et exposé aux exagérations qui sont le résultat nécessaire de l’influence presque exclusive de l’une de ces sectes… Ici l’influence prédominante des érudits stationnaires a enfanté un code long, minutieux, fastidieux, et pourtant incomplet, parce que là où il n’y a ni plan ni principes, il ne saurait y avoir ni unité, ni ensemble, ni terme: là, cette même influence a donné naissance a des travaux législatifs qu’on pourrait comparer à l’édit de Théodoric. Ailleurs, les sectateurs de l’école historique se persuadent de pouvoir satisfaire aux besoins des hommes du dix‑neuvième siècle en réparant de vieilles machines du moyen âge. Enfin, des philosophies ont cru avoir à faire à un peuple de philosophes, et pouvoir lui donner des principes méthaphysiques au lieu de véritables lois: le peuple ne s’est pas tenu tranquille sur les bancs de cette école. Au lieu d’abstractions, il a voulu des faits. Et quels faits!” (P. Rossi, Sur les principes dirigeans, pp. 188‑190).

18 Rossi’s thesis is that the “solution” lies in carefully appraising and then “combining” the three “Schools”, the major cultural trends in evidence at the time of the political Restoration in Europe. Only combining the three main scientific orientations will be possible to find the way to build a modern, durable, national legal order in the different countries of Europe. Rossi’s approach is eclectic. He is the first scholar to define et apply in Europe this idea: single Schools alone make absolute their positions. «Eclecticism» – as we will se for Italy – allow a «mediation», a mixture, putting together the «best» of the three trends.

19 We can say that despite heavy criticisms (as in the case of Savigny) Nineteenth century can be said the “codification’s century”. Century of the codifications everywhere in continental Europe, in other parts of the world following colonial paths. Finally, it seems the most rapid way to construct national legal sistems, based on unity, formal equality, economic liberty, cognoscibility, accessibility, uniformity. Completeness was from the beginning a myth and then became an ideology.

20 Codification = bourgeois heritage and legal pillar
Codification = bourgeois heritage and legal pillar. As we mentioned above, French civil code was applied, more or less integrally, in many European countries under the Napoleonic domination (French Empire, States satellite). But it is more important to stress the fact that after the Restoration many monarchs decided to maintain the civil code adapting it according to contexts and times.

21 To adapt meant often to avoid the most “political” institutions (divorce, civil marriage, etc,), maintaining structure and main features. For a part of the nineteenth century French CC was certainly the main model, and not only in Europe. For many Civil codes in Italy, Belgium, Low Countries… In 1831 Bolivia translated the FCC. French influence is evident in Chile (1855), Colombia, Argentine… The model was followed also in Québec, Canada, and in Louisiana. In 1864 Romania followed FCC. The Code was also adopted in Egypt as part of the system of mixed courts introduced in Egypt after the fall of Khedive Ismail.

22 The Code was translated into Arabic from the French by Youssef Wahba Pasha between 1881 and Only with the enactment of the Italian Civil Code in 1865, the Swiss Code of Obligations in 1883, and especially the German Civil Code in 1900, the Civil Code of 1804 ceases to be the almost exclusive model of inspiration for countries that undertake to codify their civil legislation. He loses his monopoly; a market opens where the different civil codes find themselves in a sort of “competition”.

23 The “vocation”, the Beruf according to Savigny, seems to agree with legislation and codification, giving the primacy to the Napoleonic CC become the model. We could conclude that Thibaut’s thought prevailed on Savigny’s vision. But this conclusion would be insufficient to give a sound overview about the Nineteenth century legal evolution. On the one hand already during 1830s we can hear the first “criticisms” about the Napoleonic CC. It is the same Pellegrino Rossi to make the first observations in 1836 on some parts of CC and the contemporary economic conditions of the society.

24 Rossi says (Quelques observations sur les rapports de notre droit privé avec l’état actuel économique de la société, 1836) that the CC was inspired first and foremost by the physiocratic thought. At the center of the CC there is the land. But after that period France started its economic and manufacturing take-off. CC did not take in consideration the new kinds of property, because they were at the first steps. Meantime the law of the economy developed outside and the movable property needed to be encouraged and protect better.

25 Other jurists and economists underlined in France the emerging gap between the CC and the new industrial development. We can remember, amongst them, Louis Wolowski (1841), E. Acollas (1866), A. Batbie (1866). Going beyond the liberal criticism on the necessity to renew CC, we have the first Karl Marx’s criticisms against the “bourgeois” civil law and its most important codification. For Marx codification is only an instrument in the hands of the bourgeoisie in power. The real issue is civil law as tool to dominate the working classes.

26 On the other hand, we must come back to Savigny and above all to his successors. As we have seen, Saivgny’s Beruf is only a “parcel” of his long and important scientific way. After the Beruf and many other works S. immersed himself in RL, writing a monumental treatise on the historical development of RL. In his eight-volume System des heutigen Römischen Rechts ( ) (System of today RL), he sets the stage for his original programme: the intellectual creation of a dogmatic system based on RL, seen as the real “vocation” of his time (and not the codification).

27 S. Was unable to complete this programme
S. Was unable to complete this programme. The representatives of the Pandektenwissenschaft (Science of the Pandects) would do so. They are the true heirs of Savigny. The Pandectists set themselves the task of building up a complete and internally consistent legal system. The concrete legal precepts and concepts they used are taken from RL, but in a very “free” way.

28 Georg Friedrich Puchta (1798-1846)
Born in Bavaria, he came of an old Bohemian Protestant family which had immigrated into Germany to avoid religious persecution. He was professor in several German Universities and in 1842 succeeded Savigny at Berlin. But he died after few years, in 1846.

29 Among his writings must be especially mentioned Lehrbuch der Pandekten (Leipzig, 1838, and many later editions), in which he elucidated the dogmatic essence of Roman law in a manner never before attempted; and the Kursus der Institutionen (Leipzig, 1841–1847, and later editions), which gives a clear picture of the organic development of law among the Romans.

30 Puchta argues that his age is the «scientific age» in which the primacy on the law has to belong to the pandectist scholars. They are the voice of the Volksgeist. The jurist is the organ of the people. In other words, Puchta attributes the function of promoters of the production of law to only scientifically educated jurists, as unique and valid representatives and interpreters.

31 This doctrine of sources elaborated by Puchta thus fulfills the dual task of assigning to the jurist a creative mission of deriving new rules from legal conceptualizations and at the same time raising the product of this scientific activity to the dignity of a source. As S. had said, the process should have been: Volkgeist → Pandectist scholarship → (eventually) legislation.

32 At the middle of the Nineteenth Century the legal situation in Germany was very varied.
The Prussian territories (including Westphalia, Bayreuth, and Ansbach) were governed by the Preußisches Allgemeines Landrecht (ALR). In the Rhine-Province, Alsace, and Lorraine the Code civil applied. The Grand Duchy of Baden had adopted the Badisches Landrecht which was based on a translation of the Code civil. The Kingdom of Saxony enacted its own Civil Code in Some places in Bavaria lived according to Austrian law, while in parts of Schleswig-Holstein Danish law prevailed. Most of the remaining German territories (comprising, in 1890, close to 30 per cent of the population of the Deutsches Reich) still administered justice according to the ius commune.

33 At the same time, Savigny’s vision of an ‘organically progressive’ legal scholarship, based on a uniform body of sources, guided by the same methodological convictions, and common to the whole nation led to a heyday of legal scholarship in Germany. It constituted the intellectual foundation for the emergence of a national community of scholars, of German legal unification on a scholarly level. Pandectism secured the leading place for Germany in the world of nineteenth-century legal scholarship; it was much admired by lawyers all over Europe and exercised significant influence on the legal development in countries such as France, Italy, and Austria.

34 From about the middle of the nineteenth century in Germany it was acceptated that a codification of private was about to come and was to end the direct application of Roman law. Theodor Mommsen in 1848 voiced the German nation’s desire for the creation of a uniform and national law, and Rudolf von Jhering predicted in 1852 that his own generation of lawyers would see the demise of Roman law in its present form.

35 And even one of Savigny’s most faithful disciples, who had sat at his feet in the University of Berlin and who had never ceased to see in him his own scholarly ideal, Bernhard Windscheid, was among the most influential proponents of a German codification. Among the German lawyers, he wrote in 1878, «there are probably relatively few who have not, with all the strength of soul available to them, yearned for the great work of a German code of private law».

36 Bernhard Windscheid He studies law in Berlin and Bonn, obtained his degree in 1838. He taught in Basel, Munchen, Heidelberg, Leipzig.

37 His principal work was Lehrbuch des Pandektenrechts ( ), and this was the main source of inspiration for the German Civil Code (BGB). Pandect science, in reality, was an eclectic school of thought taking inspiration from many currents in historical jurisprudence. It has its roots in Savigny and his school, in the philosophy of Hegel, some aspects of NL, the usus modernus pandectarum and humanism. The unification of Germany in 1870 created the political base for the unification of the civil law. Already some parts of German legal system had been unificated (commercial law, trade, justice, and so on)

38 private law».

39 Windscheid took part in the first commission in charge of the drafting of the German Civil Code ( ) Codification’s process - appointment of a preliminary commission; - subsequently, of the First Commission - preparation of preliminary drafts by the reporters appointed for the five books of the projected code - publication of the First Draft with the attendant motivations (entitled Motive zu dem Entwurfe eines Bürgerlichen Gesetzbuches für das Deutsche Reich) - vigorous and very controversial public debate

40 deliberations of an internal commission of the Imperial Department of Justice
appointment of the Second Commission, publication of the Second Draft, again with the attendant motivations (this time entitled Protokolle der Kommission für die Zweite Lesung des Entwurfs des Bürgerlichen Gesetzbuches) revision of the Second Draft by the Federal Council (Bundesrat) the debates in the Imperial Parliament (both in committee and in plenary sessions) the taking of the final vote (with the Social Democrats voting against the code because it did not deal with labour relations)

41 promulgation in the Government Gazette of 1896, and entry into force, simbolically, a little less than three and a half years later, on 1 January 1900. The Germanists were not agree with the Romanists (Pandectists) because according to them the essence of German law needed to be discovered in Germanic law (traditions and customs). K.F. Eichhorn (died 1854) and J. Grimm (d. 1863) were the leaders of the Germanists. They regarded old Germanic law as the only possible basis for a true national law of the German people (a Volksrecht rather than a Professorenrecht). German public opinion was nationalistic and nearest to the Germanists.

42 BGB appeared them too roman law-
oriented, too scientific and too little attentive to the new social classes (proletariat). But the Romanists could plead that Pandektenrecht was much more sophisticated and more modern than the law of Germanic antiquity or the Middle Ages.

43 STRUCTURE The BGB follows a modified pandectist structure, derived from Roman law: like other Roman- influenced codes, it regulates the law of persons, property, family and inheritance, but unlike e.g. the French Code civil or the Austrian Civil Code, a chapter containing generally applicable regulations is placed first. Consequently, the BGB contains five main parts (or "books"): the general part (allgemeiner Teil), articles 1 through 240, comprising regulations that have effect on all the other four parts, such as personhood and civil status, contractual capacity, declarations of will, rescission, formation of contracts, limitation of

44 actions, and agency. The feature of BGB is the result of the highly dogmatic teaching of German universities in the nineteenth century which, dominated by the Pandectist School, had completely changed (while purpoting merely to sistematize) the German Ius commune. «General part» can be considered a new technique. New codes promulgated since the German code have sometimes followed its example (Brazil, Greece, Poland, Czechoslovakia…). General part is the hemblem, the leaving.

45 ‘manifesto’ of Pandectists
‘manifesto’ of Pandectists. As we have seen, BGB was entirely a work of academic lawyers addressing themselves to learned judges and lawyers. Their aim was not to disseminate knowledge of the law among the people. It was a very «Wissenschaftliche» (scientific) code. The systematic structure of the code moves from general principles to specific rules. i.g. contract of sale: first it is necessary to consult the Allgemeiner Teil (art, 116 ff. and 145 ff.), then the articles on the general principles of

46 obligations (art. 275 and f.), next the general principles of contractual obligations (art. 305 and f.), and finally thr articles on the contract of sale in particular (art. 433 f). How far we are from the French Civil Code and the famous Stendhal’s statement: he read sometimes some articles of Napoleonic code to learn a style based on clearness, simplicity and brevity!

47 Other books law of obligations (Schuldrecht), art. 241 through 853, describing contractual obligations and other civil obligations, including torts and unjust enrichment property law (Sachenrecht), art. 854 through 1296, describing possession, ownership, other property rights (e.g. servitudes, security interests), and how those rights can be transferred family law (Familienrecht), art through 1921, describing marriage and other legal relationships among family members inheritance law (Erbrecht), which regulates what happens to a deceased's estate, as well as the law of wills.

48 The general public in Germany has never developed any enthusiasm for the BGB, in spite (or, possibly because) of all of its technical qualities. And even among lawyers, the code was not universally greeted with feelings of elation or joy. But for the Pandectists the fact that the codification was enacted on the first day of the new century was greeted with strong feelings of national pride. «The new century brings to fruition the greatest feat achieved in German legal life», as it was put in one of the two leading

49 law Journals for practitioners, while the other one, the Deutsche Juristenzeitung (German Lawyers’ Journal) opened its January issue for the year 1900 with an ornamental page carrying the heading ‘One People. One Empire. One Law’. For the first time, the notion of legal unity had become reality on German soil and for the first time, therefore, the energies of scholars and practitioners alike could focus on the interpretation of one and the same authoritative text.

50 BGB was a code bearing the stamp of individualism; its family is essentially patriarchal (the husband is head of the family including his wife, and he alone is responsible for administering family property), freedom of contract is absolute, and so is the right to private property. BGB became quickly a «legal model». Even Japan «adopted» BGB in 1898, before it had come into force in Germany. BGB influenced the Swiss code of 1907, Chinese code of 1929 and many others. The BGB brought an end to the «monopoly» of the FCC, which until then had served as the international model.

51 I quoted the Swiss civil code of 1907
I quoted the Swiss civil code of It is another very important new civil code. In 1881 Switzerland, for constitutional reasons, enacted a code of obligations containing the rules of the civil law of obligations and commercial law. So this text departed from the European models in France, Austria and Germany where they had separated the codification of the two branches of private law (civil and commercial law).

52 The unification process brought Swiss jurists to ask a general civil codification. In 1884 the Bundesrat asked to professor Eugen Huber to carry put a preliminary reconnaissance of private law systems in the different cantons.

53 Eugen Huber He studied at the University of Zurich and in 1872 received his doctorate in law.  He was then professor in Basel, and in Germany, at Halle and and Wittenberg. During this time, he began to write an extensive treatise on the private laws of the cantons, which was published in four volumes. 

54 In 1892, Huber was asked by the Swiss government to draft the Swiss civil code (Zivilgesetzbuch), which he completed in 1904 using the vast analytical work made about cantons’s civil law systems. The Civil Code of 1907 was enacted at federal level for other civil subjects. So, the Swiss code is an «author code», mainly the work of the jurist Eugen Huber. In 1911, the Swiss Code of Obligations was adopted and considered as the fifth part of the Swiss Civil Code. It thus became the first civil code to include commercial law. Italy in 1942 followed this model.

55 The preparation of the code was conducted with extraordinary care; lawyers, magistrates, professors, exponents of canton traditions, politicians, individuals, associations and social groups were all consulted at various stages. It was necessary to find a solution to the contrast between tendencies towards the Napoleonic code of the French- and German-speaking cantons, as well as the conflicts between the traditionalists of the mountain areas (particularly in matters to do with property rights, family and succession) and that of the commercial and industrial bourgeoisie, in favour of a more modern and dynamic regulation of goods and their circulation.

56 The Swiss Civil Code contains more than two thousands articles
The Swiss Civil Code contains more than two thousands articles. The structure is straightforward: four books dedicated to persons, family, succession and property law. There was not a general part- Very famous is its first article stating that: “The law applies according to its wording or interpretation to all legal questions for which it contains a provision. In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator. In doing so, the court shall follow established doctrine and case law”

57 As said, it was influenced by the German civil code, but the majority of comparative law scholars (such as K. Zweigert and Rodolfo Sacco) argue that the Swiss code derives from a distinct paradigm of civil law. Huber’s code – written in clear and accessible language and officially translated in French and Italian – is considered by some scholars, in view of the balance and coherence of its norms, the best private law codification of nineteenth-century Europe.

58 To conclude this section we need to underline some points
To conclude this section we need to underline some points. We can say that the nineteenth-century has started with FCC (1804) and finished with Swiss CC ( ). During the century we have seen some “models” of civil codification with some common elements and some different aspects. They are “bourgeois” codes because they reflect social and economic changes. Nineteenth-century is the “bourgeois” era and civil (and commercial) codes are the “manifestos”, the material constitutions of the new world.

59 Just reading Honoré de Balzac’s novels or Thomas Mann’s The Buddenbrook show us how central was codified private law in the collective imaginary. In the first half of the nineteenth-century liberal jurists said that civil codes had to be more in step with the “new” society based on trade, banks and finance. In the second half some critical remarks were addressed to the “conservative” contents and aims of the main civil codes. In Germany some jurists started to criticize the “pandectistic” approach based on refined but abstract legal concepts.

60 They saw it as a struggle between forces and interests
They saw it as a struggle between forces and interests. For them, law was above all a social product and a tool for social action, rather than the privileged domain of learned jurists. Their doctrine is called Interessenjurisprudenz as opposed to the traditional Begriffsjurisprudenz (jurisprudence of concepts). Rudolf von Jhering published in 1877 Der Zweck im Recht (The purpose into the law). Von Jhering had himself begun as a traditional Romanist, but he became dissatisfied with abstract logical reasoning and involved in the social problems of his time. Law was the object of a struggle for collective interests and for power

61 and so, ultimately, as the result of political forces (Der Kampf ums Recht, 1872) (The struggle on law) The law, according to the legal positivism, was the instrument of the forces which dominated the state and its legislative organs. In France François Gény (1861–1959), professor of law at the University of Nancy, introduced the notion of "free scientific research" to the interpretation of positive law. At the end of the 19th century, the Civil code of 1804 was still the major reference in French law. This Civil Code was inspired by the French

62 revolution principles, where judges, as we have seen, were considered as the « mouth of the law » and bound to apply it without any interpretations. However, François Gény decided to use an independent method based on the will of the law-maker. In his work Method of interpretation and sources of positive private law: a critical essay, published in 1899, François Gény declared that law has different implications. He noted that customs, tradition and scientific studies should be used to identify different interpretations of what is written

63 in the law. In Science and technic in positive private law, published from 1914 to 1924, François Gény described a new method of interpretation called free scientific research with the goal to discover the origins of principles and rules. With this free scientific research, he based his studies on various "sciences" such as sociology, economics, linguistics, philosophy and theology, that previous law teachers had not used before.

64 His advocacy of judicial discretion in the interpretation of statutory law had an important influence across Europe. Gény also emphasized that judges should take into account social and economic factors when deciding cases. It is not a case that Gény had an important intellectual relation with Eugen Huber, the author of the Swiss CC. The first article of this code gave value to the role of the judge who, in case of lacunae, could decide as if he was the judge of the specific cause.

65 Another important French jurist, Raymond Saleilles ( ), friend and colleague of François Gény, admired German law and the German doctrine on which he wrote one of his most important works entitled Essay on the obligations in the first draft of the German Civil Code, published in 1901, while he was professor at Dijon. This book innovates in private law of obligations, while the German Civil Code was largely unknown. With Gény, Saleilles created the School of free scientific research in opposition to the School of Exegesis: for him, this method of interpretation of

66 the civil code attached too much importance to the very letter of the text. The method of Saleilles and Gény started from the legislative text to look for all the possibilities of suitable solutions. In case of deficiency, it is necessary to freely seek and elaborate the desirable solution by drawing inspiration from the history of reason and the current needs. Saleilles will say later: "Beyond the civil code, but by the civil code“.