McGILL LAW JOURNAL
[Vol. 3
THE REVISION OF THE CIVIL CODE
To use a French expression: “Le vent est aux revisions”. In France, a Com-
mission composed of twelve eminent Jurists has been at work since 1945 to re-
vise the french civil code (or Code .Napoleon). Their final report has not
yet been submitted to the Parliament. In Louisiana, where as we know, the
civil law is similar to that of the province of Quebec, a revision is also taking
place. The Quebec Code dates back to the year 1866. It has therefore been
in force during the last ninety years. Our Provincial Parliament has deemed
it advisable that the time for a revision had been reached. Indeed the Codifiers
of 1866 themselves, in their report, had advised that a revision might be
undertaken after some thirty years. If that recommendation were to be fol-
lowed, it may be said that the revision of the Code is long overdue.
Moreover, it was of course impossible for the Codifiers to foresee the
tremendous developments of the future. Both the authors of the Code
Napol6on and those of the Quebec Code realized the necessity of the legisla-
tion growing to the demands of new times and circumstances. Lord Shaw,
speaking at a meeting of the Canadian Bar Association, once said: “Law
must not be enclosed in a monumental past and must move with the times”.
In other words, for the solution of the problems arising in the present era,
we should not be tied down exclusively to the teachings of the Roman Law
or the precepts of the Coutfimes which ruled in the course of the Middle
Ages. To use the words of Mr. Justice .Holmes, the great jurist of the United
States Supreme Court: “The life of the law has not been logic, it has been
experiehce.” And after outlining the factors which determined the rules by
which men should be governed, Mr. Justice Holmes added: “The law em-
bodies the story of the nation’s development through many centuries, and it
cannot be dealt with as if it contained only the axioms or corollaries of a
book of mathematics.” To which may be compared what Sir Frederick
Pollock wrote in his Expansion of the Common Law, p. 14: “Law is not an
affair of bare literal precepts, as the mechanical school would make it, but is
the sense of Justice taking form in peoples and races.’
The Romans had already expressed the same view. They had an adage:
Lex fit consensu populi (“Law spreads from the consent or volition of the
people”). So that what a revision of the Civil Code should endavour to
accomplish, I modestly submit, is to ascertain the reaction of the people of
this Province to the Code as it now stands and to embody in the new sug-
gestions the improvements and the modifications which the people desire
and which are compatible with the fundamental and basic principles of our
civil law. That result ought to be made safe by the fact that the report of the
Commissioners who have been appointed will first be submitted to the At-
torney-General of the Province and afterwards be deposited by him before the
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CASE AND COMMENT
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Provincial Parliament whose function it will be to examine it, to discuss it,
to amend it wherever found necessary and finally to adopt it, as represent-
atives of the people of this Province. Thus will it become a law expressing
the consent of the people of this Province and in accordance with the sound
standards of democracy.
The whole proceeding will undoubtedly require minute consultation and
study, and prudent handling and direction. But it has to be admitted that such
an important and delicate work cannot be hastily disposed of. It must take
form in an atmosphere of patience and of wise thought and consideration.
THiBATDEAU RINFiRT *
*The Right Honourable Thibaudeau Rinfret, P.C., Former Chief Justice of Canada;
Commissioner for the Revision of the Civil Code.
