Of all the branches of legislation, the Civil Code is that which presents the fewest attractions to those who do not study the law as a profession. This assertion is not strong enough, since this branch, has hitherto almost inspired a species of disgust. Curiosity has for a long time been ardently directed to the consideration of political economy, penal law, and the principles of government. Celebrated works have rendered these studies respectable; and upon pain of acknowledging a humiliating inferiority to those around us, it is necessary that these should be understood, and an opinion be formed respecting them.
But the Civil Law has never yet passed the obscure bounds of the Bar. Its commentators sleep in the dust of the libraries, by the side of their opponents. The public are ignorant even of the names of the sects that divide them, and regard with a silent respect the numerous folios, the enormous compilations, ornamented with the pompous titles of Body of Laws and Universal Jurisprudence, &c.
The general dislike to this study is the result of the manner in which it has been treated. All these works occupy the same in the science of law, which was once occupied by the works of the schoolmen in the natural sciences, before the establishment of experimental philosophy. Those who attribute their dryness and their obscurity to the nature of their subject, show them too great an indulgence.
Indeed, to what does this part of the laws refer? It treats of every thing which is most interesting to men:---of their security, of their property, of their reciprocal and daily transactions, of their domestic condition in the relations of father, husband, child. It is here we behold the rise of Rights and Obligations, for all the objects of law may be reduced to these two terms, and there is then no mystery.
The civil code is at bottom only the penal code under another aspect: it is not possible to understand the one, without understanding the other. The establishment of Rights is the granting of permissions, and the issuing of prohibitions: in a word, it is the creation of offences. To commit an offence is, on the one hand, to violate an obligation---on the other hand, a right. To commit a private offence is to violate an obligation due to an individual---a right which he has over us. To commit a public offence is to violate an obligation due to the public---a right which the public have over us. Civil law is therefore only penal law considered under another aspect. if I consider the law at the moment it confers a right or imposes an obligation, I consider it in a civil point Of view. if I consider the law in its sanctions, in its effects, with respect to a violated right or broken obligation, I consider it in a penal point of view
What, then, is meant by Principles of Civil Law? We intend to express the motives of the laws---the knowledge of the true reasons which ought to guide the legislator in the distribution of the rights he confers, or the obligations he imposes upon individuals.
In the whole library of writings upon the civil law, we search in vain for one which has had for its object the exhibition of the reasons upon which it is founded: philosophy has never entered there. The Theory of Civil Law by Linguet, which promises much, is far from deserving its title: it is the production of an unregulated imagination, governed by a bad heart. An oriental despotism is the model to which he would reduce all the European governments, that he might correct all their notions of liberty sad humanity, which seem like mournful spectres to torment him.
The disputes of jurisprudence have produced, even in its schools, a set of doubters, who have doubted whether they, had any principles. According to them, every thing is arbitrary---the law is good, because it is law: because a decision, whatever it may be, produces the great benefit of peace. There is in this opinion a little truth, and a great deal of error. It will be seen in the following work, that the principle of utility extends over this portion of the laws, as well as over all the others, but that its application is difficult---that it requires an intimate knowledge of human nature.
The first ray of light which broke in upon Mr. Bentham in his legal studies was, that the law of Nature---the original Compact---the moral Sense---the notions of Right and Wrong, which had been employed for the explanation of the laws, were only at bottom those innate ideas whose falsehood had been so ably demonstrated by Mr. Locke. He saw that they revolved in a vicious circle. Familiarized with the method of Bacon and of Newton, he resolved to introduce it into legislation: he has made it an experimental science: he has discarded all dogmatic words; he has rejected all terms that do not express some sensation of pleasure or of pain. For example, he will not admit that property is an inherent right---a natural right; because these terms explain nothing, prove nothing. The terms Justice and Injustice have in his eyes the same inconvenience of prejudging, instead of illuminating, the questions to which they refer. When he proposes to establish law, he does not pretend to have discovered corresponding law in the law of nature, and by a common trick present that as already done, which still remains to be done. When he explains obligations, he does not envelope them in mysterious reasons; he admits nothing on supposition. He clearly shows that every obligation ought to be founded either upon some previous service received by the person on whom it is imposed, or on some superior need on the part of the person in whose favour it is imposed, or upon some mutual agreement which derives all its force from its utility. Thus always guided by experience and observation, he only considers the effects which the laws produce upon the faculties of man as a sensible being, and he always assigns pains to be avoided as the only arguments of real value.
The Civilians never leave off reasoning upon fictions, and giving these fictions the same effect as realities. For example, they admit of contracts, which never existed; of quasi contracts, which never had the appearance of existing. In certain cases, they admit a civil death: in other cases, they deny natural death. Such a dead man is not dead, such another living man is not living; such an one who is absent ought to be considered as present, such an one who is present ought to be considered as absent: a province is not where it is; a country does not belong to those to whom it belongs; men are sometimes only things, and as such cannot possess rights; things are sometimes beings which possess rights, and are bound by obligations. They recognise imprescriptible rights which have always been prescribed against, and unalienable rights which have always been alienated; and that which is not, is always more distinctly visible to their eyes than that which is. Take away their fictions, or rather their lies they know not where they are: accustomed to these crutches, they cannot walk without them. Mr. Bentham has rejected all these puerile arguments: he has not one gratuitous supposition, not one arbitrary definition---not a reason which is not the expression of a fact, not a fact which is not drawn from an effect of the law, either good or bad.
It is by this method of always reasoning consistently with his principles, that he has made the Civil Law a new science: new and even paradoxical to those who have been educated in the opinions of the ancient schools; but simple, natural, and even familiar, to those who have not been misled by false systems. Hence a translation of this book would have in all languages the same meaning and the same force, because it appeals to the experience of all men, instead of technical reasons---of reasons founded upon abstract terms, upon arbitrary definitions, which possess only a local value, and consist only of words, which disappear when no synonyms are found by which to translate them. It is thus the savage Africans, who make use of shells for money, discover their poverty immediately that they pass their own frontiers, and wish to exchange their conventional riches with strangers.
In Mr. Bentham's MSS. there are frequent references to the laws of England. As his observations would often have appeared to want a foundation, if I had not mentioned the particular laws against which they were directed, I have endeavoured, for the purpose of clearness, to develope that which was only an allusion to the original. I may have made some mistakes; these ought not to be imputed to the Author. These laws are in general so difficult to understand, that it is dangerous for an Englishman, who is not a lawyer, to hazard an opinion respecting them, and much more so, therefore, for one who is not an Englishman.
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