Portalis versus Bentham (Part I)

A couple of years ago, I wrote about Jeremy Bentham’s pamphlet “Law as It Is, And as It Is Said to Be,” also (or better) known as “Truth versus Ashurst” (available here, at p. 145), most famous ― or infamous ― for its “dog law” diatribe against the common law. In the last part of the essay, Bentham called for the turning of “what there is good of common law … into such that “what is common in both to every class of persons were put into one great book (it need not be a very great one) and what is particular to this and that class were made into so many little books,” (149) written in simple, accessible terms the contents of which everyone would learn at school and at church. The countries that have taken Bentham’s advice and codified their law, however, found that this was not enough to “deliver [them] out of the clutches of the harpies of the law.” (150) But then, unlike Bentham, they probably did not expect that it would have any such effect.

Jean-Étienne-Marie Portalis, one of main drafters of the French Civil Code (a.k.a. the Code Napoléon), took a rather more realistic view of what his and his colleagues’ work would accomplish for simplifying the law and making it more accessible. He also had a much more sophisticated view than Bentham ― or those who followed Bentham in deriding “judge-made” law ― had of the judicial role in developing and expounding the law. He is not, I think, well known at all in English-speaking world, so it is worth presenting some of the ideas he develops in the “Preliminary Address on the First Draft of the Civil Code” which he wrote and delivered on behalf of his co-authors. (The original French version is available here, by the way, and an explanatory note, here; and kudos to the federal Department of Justice for having put it online ― though I’ll use my own translation, in what follows, and not the government’s. Google Books also has a freely-accessible volume in which the address is printed along with other materials relative to Portalis’s work on the Civil Code.)

In this post, I will cover some of Portalis’s views on the role of legislation and that of jurisprudence generally. In a subsequent one, I’ll talk in more detail about his views on adjudication, including those on what for Bentham was the “dog law” problem of case law. I might also have a third post dealing with some of Portalis’s ideas that belong more to the realm of political than that of legal philosophy.

Unlike Bentham, Portalis had a respectful attitude to the past and to the law which it had bequeathed to his generation ― even though he was engaged in the task of reforming this law. “What a task it is,” he exclaimed,

to draft the civil laws for a great people! The work would be beyond human strength, if it consisted in giving to this people entirely new institutions, and if … one disdained taking advantage of the past’s experience, and of that tradition of good sense, of rules and maximes, which came to us, and which forms the spirit of the centuries.

Rather like Bentham, in some moods, Portalis was a conservative, or perhaps a Hayekian avant l’heure, cautioning that “one must be sober of innovation in matters of legislation, because while is possible, in a new institution, to calculate the advantages that theory offers us, it is not possible to know all the drawbacks which only practice can discover,” and going so far as to claim that only geniuses with all-encompassing minds are entitled to “propose changes” to the laws. Most changes that are actually made into law turn out to be failures.

At most, the drafters of a code could try to simplify the law. Yet even that worthy task is a dangerous undertaking, because it runs the danger of “leaving citizens without rules and without guarantees of their greatest interests.” Unlike Bentham, who thought that the law could be kept short, simple, and accessible, Portalis warned that short laws are never enough for growing and complex societies. The fantasies of reducing the law to the size of the Roman Twelve Tables ignore all the subsequent development of Roman law. And it is doubtful that even a simple legal code would be accessible to every person in society.

Moreover, the role of the drafters of a civil code is not to “foresee everything.” Indeed, “wishing to settle and to foresee everything” is a “dangerous temptation,” which Portalis was proud of having avoided. Society, Portalis argued, is too complex for legislation to regulate everything in advance. The legislator’s foresight cannot be all-embracing; it cannot anticipate the growth and changes of society; there are things that we can only learn from experience. Yet

statutes, once drafted, stay as they were written. Men, however, never rest; they always act; and this movement, which never stops, and whose effects are variously modified by the circumstances, throws up at every moment some new combination, some new fact, some new result.

Portalis added that “experience must fill one by one the blanks that we leave. The codes of the peoples are made over time; but, strictly speaking, they are not made.” Again, this is a spirit which, if we are familiar with it at all, we in the English-speaking world mostly associate with Hayek ― presented, in clear terms, 170 years before Law, Legislation and Liberty.

And how is law to be adapted to this incessant movement of human affairs? It is the judges, ultimately, who must do it. Legislation, says Portalis, can only fix the general principles, while “it is the judge and the lawyer who, imbued with the general spirit of the laws, must direct their implementation.” While Bentham thought the very existence of a common law developed ― or, as he claimed, “manufactured” ― by judges a calamity, Portalis thought it an inextricable part of law-based government. (Portalis uses the expression “nations policées,”which the federal government’s translation renders by “civilized nations,” but I don’t think that the emphasis is on civilization so much as on “a government of laws, not of men,” or at least “rule by law” is not “rule of law”; Portalis contrasts the nations he has in mind with Turkey, which was not so much uncivilized as ― in his telling anyway ― lawless.) In polities where the law prevails,

there emerges, beside the sanctuary of statutes, and under the legislator’s watch, a store of maxims, decisions, and doctrine, which works itself pure every day through practice and the clash of judicial debates, which always increases with all acquired knowledge, and which has always been considered to be the true supplement of legislation.

Portalis adds, later on, that even though the legislature must “keep watch over the case law,” and can correct it, it is necessary for case law to exist.

The idea of the law working itself pure is, of course a familiar one to common lawyers, or at least to the sort of people whom others, more cynically minded, might see as common law romantics. It is striking to see it expressed, in those very terms (Portalis uses the word “s’épure“), by the great French codifier. But then, it’s not exactly a new observation that it sometimes by looking at the thoughts and the customs of others that we learn more about our own, and perhaps even come to appreciate them in new ― or in old but forgotten ― ways.

UPDATE: I decided to do some extra research after having hit the “publish” button, and came across an article by Michel Morin called “Portalis c. Bentham ? Les objectifs assignés à la codification du droit civil et du droit pénal en France, en Angleterre et au Canada.” I haven’t read it yet (I will before writing my next post on Portalis), but it seems very interesting. Most importantly, however, I wanted to acknowledge having been beaten to this post’s title ― and plead guilty to haste, but not to copying.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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