647
[end of lecture 38]

LECTURE XXXIX.

DISADVANTAGES OF JUDICIAL LEGISLATION.—THE QUESTION OF CODIFICATION DISCUSSED.

In my last evening’s discourse, I called your attention to a few of the numerous differences which distinguish statute law (or law made by direct, or proper legislation) from judiciary law (or law made by judicial, or improper legislation).

Having stated (or suggested) a few of those numerous differences, I passed to the advantages and disadvantages of judicial or improper legislation, and to the possibility of excluding that 648prevalent mode of legislation, by means of complete codes, or complete systems of statute law.

Adverting to the last-mentioned subject, I proposed considering the following topics in the following order: First, certain groundless objections which have been made to judiciary law; secondly, certain of the evils, which, in my opinion, judiciary law really produces; thirdly, the possibility of excluding judicial legislation, by means of complete codes, or complete bodies of statute law.

In pursuance of that purpose, I examined certain objections to judiciary law, which, in my opinion, are founded in misapprehension. In pursuance of the same purpose, I now shall state or suggest a few of the numerous evils which judiciary law really produces: And, having stated or suggested a few of those numerous evils, I shall give to the question of codification that brief and insufficient notice which is all that my time and limits will allow me to bestow upon it.

Note on the term ‘judiciary law,’ ‘code,’ etc.

Before I proceed with the subject of judiciary law I must make a few remarks upon the term.

Perhaps I ought to have called it ‘judicial law.’ The epithet ‘judicial’ has been applied by Sir Samuel Romilly and other eminent men, to improper or indirect legislation. And judges who legislate as properly judging, are styled by the same eminent persons ‘judicial legislators.’

I find, however, on looking into Bentham, that he styles the law which is made by judges, as properly and directly exercising their judicial functions, ‘judiciary law.’ And in the language of French lawyers, the judicial decisions of judges are opposed by the name of ‘arrêts judiciaires’ to their ‘arrêts généraux et réglementaires;’ that is to say, to their statute laws. The difficulty of finding a term at once significant and unambiguous is extreme.

The numerous ambiguities of ‘unwritten,’ I have explained in preceding Lectures.

At the end of this evening’s discourse, or at the beginning of my next Lecture, I shall shew that the term ‘common law’ will not answer the purpose. I will merely remark at present, that, as opposed to ‘statute law,’ ‘common law’ excludes statute law, but does not of necessity comprise the whole of judiciary law. As opposed, therefore, to statute law, ‘common law’ is inadequate. And as opposed to the law (styled ‘equity’) which is administered by the extraordinary tribunals styled ‘courts of equity,’ ‘common law’ is not synonymous with ‘judiciary law.’ 649As opposed to ‘equity,’ it only includes the judiciary law which is administered by the Courts styled ‘Courts of Common Law;’ and it comprises, moreover, the statute law administered by the same tribunals.

‘Judge-made law’ (as it has been applied) is also insufficient. As it has been applied, it means any law made by subordinate judges, or judiciary law made by subordinate judges. As meaning the first, it includes statute law as well as judiciary law. As meaning the second, it excludes the judiciary law which is established directly by the judicial decisions of sovereign or supreme judges.

We want a term for the following object: namely, law made judicially (or made through particular decisions on particular cases) by sovereign or subordinate judges. And I think that the term ‘judicial law,’ or the term ‘judiciary law,’ is the only term which will denote the object adequately and unambiguously.

There is the same difficulty about the word ‘Code.’ This word is frequently taken for a collection, not of the entire law of a country, but only of portions of it: such is Justinian’s ‘Codex’ or Code: it is not a complete code of law, but a compilation of the constitutions of the Emperors. Justinian’s Code, in the sense of a complete and exclusive body of law intended to comprise all the law thereafter to obtain in the Roman Empire, consisted of the Code, the Pandects, and likewise the Institutes, wherever that expository treatise had the force of law, as being necessary for the understanding of the Code and Pandects.

There is the same ambiguity in the German word Gesetzbuch. Gesetz is translated statutum or lex; and Gesetzbuch according to this analogy should mean any collection of statute law; which it accordingly does: but it also occasionally denotes a complete Code. We want a term to denote a complete body of statute law, being or intended to be the only positive law obtaining in the community. To express this, there is no term which is wholly unambiguous. The word ‘Code’ is that which, with these explanations, I shall find it most convenient to use.

Tenable objections to judiciary law.

Having made these remarks upon terms, I proceed to state or suggest a few of the numerous evils which, in my opinion, judiciary law really produces.

First tenable objection to judiciary law.

First: As I shewed in my last Lecture, a judiciary law (or a rule of judiciary law) exists nowhere in fixed or determinate expressions. It lies in concreto: Or it is implicated with the 650peculiarities of the particular case or cases by the decision or decisions whereon the law or rule was established. Before we can arrive at the rule, we must abstract the ratio decidendi (which really constitutes the rule) from all that is peculiar to the case through which the rule was introduced, or to the resolution of which the rule was originally applied. And in trying to arrive at the rule by this process of abstraction and induction, we must not confine our attention to the general positions or expressions which the judicial legislator actually employed. We must look at the whole case which it was his business to decide, and to the whole of the discourse by which he signified his decision. And from the whole of his discourse, combined with the whole of the case, we must extract that ratio decidendi, or that general principle or ground, which truly constitutes the law that the particular decision established.

But the process of abstraction and induction to which I now have alluded (and which I analysed at length in my last Lecture), is not uncommonly a delicate and difficult process; its difficulty being proportioned to the number and the intricacy of the cases from which the rule that is sought must be abstracted and induced. Consequently, a rule of judiciary law is less accessible and knowable than a statute law: provided (that is to say) that the statute law with which the rule is compared, be not only expressed in abstract and brief expressions, but also in such expressions as are apt and unambiguous as may be. For (as I shall shew immediately) the very indeterminateness of its form (or the very indeterminateness of the signs by which it is signified or indicated) renders a judiciary law less uncertain in effect than a statute law unaptly and dubiously worded. But, assuming that a statute law is aptly and unambiguously worded (or as aptly and unambiguously worded as the subject and language will permit), it is more accessible and knowable than a rule of judiciary law which must be obtained through the process to which I have adverted above.

And it must be recollected, that whether it be performed by judges applying the rule to subsequent cases, or by private persons in the course of extra-judicial business, this delicate and difficult process is commonly performed in haste. Insomuch that judges in the exercise of their judicial functions, and private persons in their extra-judicial transactions, must often mistake the import of the rule which they are trying to ascertain and apply.

A second tenable objection to judiciary law.

And this naturally conducts me to a second objection: 651namely, that judiciary law (generally speaking) is not only applied in haste, but is also made in haste. It is made (generally speaking) in the hurry of judicial business, and not with the mature deliberation which legislation requires, and with which statute law is or might be constructed.

This objection does not apply to all judiciary law; for when made on appeal, after solemn argument and deliberation, it may be made with as much care and foresight, perhaps, as any statute law. This was the case with many of the decretes of the Roman Emperors, as the supreme judicatory of the empire, which was drawn up by the Præfectus prætorii, commonly the most eminent lawyer in the empire, or by the eminent jurisconsults whom he consulted. The same may be the case with the law made by the Prussian Law-Commission (if this can be regarded as a court of appeal).⁷²

I would not, therefore, affirm of all judiciary law, that it is made with less deliberation than statute law; but (speaking generally) it is made in the course of business, and therefore is not constructed with the requisite forethought. The position in which judges are placed gives them ample opportunities for marking the defects of the law, and often enables them to offer to the legislator invaluable suggestions; but it does not, I conceive, render them the best of legislators, nor does it fit them pre-eminently for actual legislation: I mean, as engaged in their judicial function; for out of it they are of course the very best legislators possible, if they are enlightened as well as experienced lawyers.

A third tenable objection to judiciary law.

Thirdly: In relation to the decided case by which the rule is introduced, a rule of judiciary law is always (strictly speaking) an ex post facto law. And in relation to the case to which it is first applied, it has commonly (though not universally) the effect of a law of the kind.—I think that the objection on which I now am insisting, must be taken with the slight limitation which I have just suggested, and which I will briefly explain.

As I observed in my last Lecture, the decisions of the Courts are often anticipated by private practitioners. And the law thus anticipated, though not strictly law, performs the functions of actual law, and generally becomes such ultimately. Now where a rule of judiciary law has been thus anticipated, it may not have the effect of an ex post facto law with reference to the case by which it is introduced. For though the parties to the case 652have not been forewarned by the legislature, they may have been forewarned by the opinion or practice of those whose opinions and practices the tribunals commonly follow. They could not have guided their conduct by the actual law, but they might have guided their conduct by what it probably would be.

The same observation applies wherever the parties can infer, by probable argumentation, the decision which the tribunals will come to. In every such case the law is strictly ex post facto, and the parties cannot therefore obey the law, but they nevertheless have an inkling of the rule by which their case will probably be decided.

I suggest the limitation, being unwilling to exaggerate.

The limitation, however, is so insignificant, that (speaking generally) a rule of judiciary law, with reference to the case to which it is first applied, is not only strictly an ex post facto law, but has all the mischievous consequences of ex post facto legislation.

A fourth tenable objection to judiciary law.

Fourthly: For the reasons which I assigned in my last Lecture, and for others which I passed in silence, there is more of stability and coherency in judiciary law, than might, at the first blush, be imagined. But though it be never so stable and never so coherent, every system of judiciary law has all the evils of a system which is really vague and inconsistent. This arises mainly from two causes: the enormous bulk of the documents in which the law must be sought, and the difficulty of extracting the law (supposing the decisions known) from the particular decided cases in which it lies imbedded.

By consequence, a system of judiciary law (as every candid man will readily admit) is nearly unknown to the bulk of the community, although they are bound to adjust their conduct to the rules or principles of which it consists. Nay, it is known imperfectly to the mass of lawyers, and even to the most experienced of the legal profession. A man of Lord Eldon’s legal learning, and of Lord Eldon’s acuteness and comprehension, may know where to find the documents in which the law is preserved, and may be able to extract from the documents the rule for which he is seeking. To a man, therefore, of Lord Eldon’s learning, and of Lord Eldon’s acuteness, the law might really serve as a guide of conduct. But by the great body of the legal profession (when engaged in advising those who resort to them for counsel), the law (generally speaking) is divined rather than ascertained: And whoever has seen opinions even of celebrated lawyers, must know that they are often worded with a discreet and studied 653ambiguity, which, whilst it saves the credit of the uncertain and perplexed adviser, thickens the doubts of the party who is seeking instruction and guidance. And as to the bulk of the community—the simple-minded laity (to whom, by reason of their simplicity, the law is so benign)—they might as well be subject to the mere arbitrium of the tribunals, as to a system of law made by judicial decisions. A few of its rules or principles are extremely simple, and are also exemplified practically in the ordinary course of affairs: Such, for example, are the rules which relate to certain crimes, and to contracts of frequent occurrence. And of these rules or principles, the bulk of the community have some notion. But those portions of the law which are somewhat complex, and are not daily and hourly exemplified in practice, are by the mass of the community utterly unknown, and are by the mass of the community utterly unknowable. Of those, for example, who marry, or of those who purchase land, not one in a hundred (I will venture to affirm) has a distinct notion of the consequences which the law annexes to the transaction.

Consequently, Although judiciary law be really certain and coherent, it has all the mischievous effect (in regard to the bulk of the community) of ex post facto legislation. Unable to obtain professional advice, or unable to obtain advice which is sound and safe, men enter into transactions of which they know not the consequences, and then (to their surprise and dismay) find themselves saddled with duties which they never contemplated.

The ordinary course is this: A man enters into some transaction (say, for example, a contract) either without advice, or with the advice of an incompetent attorney.

By consequence, he gets into a scrape.

Finding himself in a scrape, he submits a case, through his attorney, to counsel.

And, for the fee to attorney and counsel, he has the exquisite satisfaction of learning with certainty that the mischief is irremediable.

I am far from thinking, that the law can ever be so condensed and simplified, that any considerable portion of the community may know the whole or much of it.

But I think that it may be so condensed and simplified that lawyers may know it: And that, at a moderate expense, the rest of the community may learn from lawyers beforehand the legal effect of transactions in which they are about to engage.

654This expectation appears to me not to be romantic or extravagant, and my view of the possibility of simplifying the law extends so far: anything further certainly appears to me to be visionary. It would, indeed, as I shall shew in treating of the rationale of the distinction between the law of things and the law of persons, be practicable to break down the law into commodious parts, such that each class of persons might know something of that part of the law which peculiarly regards themselves. And the legislator might also construct technical formulæ for different legal transactions, with proper instructions in the margin, which would enable persons to engage in such transactions with much greater safety than at present.

v. v. Mischief done to the cause of codification, by overstating the degree of simplicity which can be given to the law.

Inconsistency of Bentham and others in this respect. When speaking of law in general, they insist on the simplicity and brevity which may be given to the system: When descending to its particular parts, they insist on its complexity.

The evil upon which I am insisting, is certainly not peculiar to judiciary law. Statute law badly expressed, and made bit by bit, may be just as bulky and just as inaccessible as law of the opposite kind. But there is this essential difference between the kinds of law. The evil is inherent in judiciary law, although it be as well constructed as judiciary law can be. But statute law (though it often is bulky and obscure) may be compact and perspicuous, if constructed with care and skill. There is in this respect an essential difference between statute and judiciary law.

An evil not inherent in judiciary law.

An objection is sometimes made to judiciary law, which is founded on an accident rather than inherent in its nature: that it is not attested by authoritative documents, but resides in the memory of the judges, or is attested by the disputable records of private reporters. This, however, is the effect of the legislators’ negligence. It is clear that there might be authorised reporters, and that their reports might be made official evidence. The decisions of our courts, as recorded in the year books, were formerly official and authoritative evidence. And it was proposed by Lord Bacon to James the First, that this ancient practice should be renewed.⁷³ On the other hand, statute law itself is not necessarily written, any more than that it is necessarily promulged.

655In some of the smaller States of Germany, the decisions of the Courts are not recorded and promulged, even by private reporters, in consequence of the smallness of the State, and the small quantity of business, which is not sufficient to pay a reporter. In these States the law must be utterly unknown! There is scarcely anything which can properly be called law. It precariously resides in the memory of the judge or of the officials of the Court. According to Thibaut,⁷⁴ there is not one lawyer in those States who has any idea what the law is, or possesses any considerable portion of the documents from which it is to be gathered. There is an approximation to this in certain cases in our own country: in local Courts, for instance, such as that of the Duchy of Lancaster. The peculiar law administered by these Courts dwells entirely in the memory of the registrar; that is, it exists somewhere, but is entirely what he chooses to make it in the particular case. And every one who frequents our Courts must have seen that occasionally, when the judge is at a standstill, he stoops down and whispers to the registrar of the Court, in whose Bewusstseyn, or consciousness, that portion of the law of the Court does really reside.

A fifth tenable objection to jndiciary law.

Fifthly: I am not aware that there is any test by which the validity of a rule made judicially can be ascertained.

Is it the number of decisions in which a rule has been followed, that makes it law binding on future judges? or is it the elegantia of the rule (to borrow the language of the Roman lawyers), or its consistency and harmony with the bulk of the legal system? Or is it the reputation of the judge or judges by whom the case or cases introducing the rule were decided?

In the Roman law, the operation of judicial decisions, in the way of establishing law, is styled (as I have stated before) ‘auctoritas rerum perpetuo similiter judicatarum.’ And, looking at the form of the expression, we might infer that a rule is not binding, unless it has been applied to the decision of many resembling cases, or, at least, of more cases than one. But, this notwithstanding, there are many rules of law in the Roman system which rest on a single decision of a single tribunal.⁷⁵

In fine, we can never be absolutely certain (so far as I know) that any judiciary rule is good or valid law, and will certainly be followed by future judges in cases resembling, the cases by which it has been introduced.

656Here then is a cause of uncertainty which seems to be of the essence of judiciary law. For I am not aware of any contrivance by which the inconvenience could be obviated.

It is manifestly not of the essence of statute law. For assuming that statute law is well constructed, and is also approved of by the bulk of the community, it is absolutely certain until it is repealed.

If, indeed, it be obscure, or if it be generally disliked, it is not more certain than judiciary law. If it be obscure, it is not knowable. And if it be generally disliked, although it be perfectly perspicuous, it probably will be abrogated by the tribunals at the instance of public opinion. A curious case of this has been mentioned to me by Colonel Murat,⁷⁶ son of the late King of Naples, who, curiously enough, has practised as an English barrister in the Floridas, and seems to have a very pretty knowledge of English law. He says that the Acts of the American State legislatures, or at least the Acts of the legislatures of those States in which he has resided, are habitually overruled by the judges and the bar. At the beginning of every term they meet and settle what of the Acts of the preceding session of the legislature they will abide by; and such is the general conviction of the incapacity of the State legislature, and of the comparative capacity and the experience of the judges and the bar, that the public habitually acquiesce in this proceeding. Accordingly, if a law, which the profession have agreed not to obey, is cited in judicial proceedings, it is absolutely rejected and put down by the lawyers sans cérémonie. In such a case as this it is evident that the statute law is not certainly law, unless it chime in with the opinion of the judges and of the bar.

I have used the word induction to denote the process of collecting a rule of judiciary law from a case or cases. It has been suggested to me that the word induction will hardly do when the rule is abstracted from a single case; but I conceive that the term may properly be applied even then. I apprehend 657that in physical science a single experiment conducted with accuracy is deemed a good basis for a universal or general conclusion, and is properly called induction.

I have also called the operation of which I am speaking a peculiar process of induction, to distinguish it from the interpretation of statute law; since this also comes under the general word induction. It is extremely difficult to find suitable terms for distinguishing ideas so closely related, though requiring to be carefully discriminated.

A sixth tenable objection to judiciary law.

Sixthly: In consequence of the implication of the ratio decidendi with the peculiarities of the decided case, the rule established by the decision (or the ratio, or the general principle of the decision) is never or rarely comprehensive.⁷⁷ It is almost necessarily confined to such future cases as closely resemble the case actually decided: although other cases, more remotely resembling, may need the care of the legislator. In other words, the rule is necessarily limited to a narrow species or sort, although the genus or kind, which includes that species or sort, ought to be provided for at the same time by one comprehensive law.

This is excellently explained by Sir Samuel Romilly, in that admirable article on Codification which I ventured to criticise in my last evening’s discourse.

The passage is as follows:

‘Not only is the Judge, who, at the very moment when he is making law, is bound to profess that it is his province only to declare it; not only is he thus confined to technical doctrines and to artificial reasoning,—he is further compelled to take the narrowest view possible of every subject on which he legislates. The law he makes is necessarily restricted to the particular case which gives occasion for its promulgation. Often when he is providing for that particular case, or, according to the fiction of our Constitution, is declaring how the ancient and long-forgotten law has provided for it, he represents to himself other cases which probably may arise, though there is no record of their ever having yet occurred, which will as urgently call for a remedy, as that which it is his duty to decide. It would be a prudent part to provide, by one comprehensive rule, as well for these possible events, as for the actual case that is in dispute, and, while terminating the existing litigation, to obviate and prevent all future contests. This, however, is, to the judicial 658legislator, strictly forbidden; and if, in illustrating the grounds of his judgment, he adverts to other and analogous cases, and presumes to anticipate how they should be decided, he is considered as exceeding his province; and the opinions thus delivered, are treated by succeeding judges as extra-judicial, and as entitled to no authority.’⁷⁸

An example is afforded by the decision of Lord Kenyon, in the case of Read and Brookman,⁷⁹ to which I have already alluded. The case arose on the proof of a lost bond, and Lord Kenyon decided that the profert of the bond might be dispensed with. Had he said that it might be dispensed with in the case of a lost instrument of any kind, he would probably have been held to have departed out of the case before him; it would have been said that he had taken into his decision objects to which the immediate case had no reference, and that he ought to have confined himself to a bond, His decision, so far as it extended beyond this, would not have obtained as authority. Thus the exigencies of society are provided for bit by bit, in the slowest and most inefficient manner, and the documents containing the law are swelled to an immense volume. In lieu of one comprehensive rule determining a genus of cases, there are many several and narrow rules severally and successively determining the various species which that genus includes.

And this inconvenience (for a reason which I have noticed above) is probably of the essence of judiciary law. So delicate and difficult is the task of legislation, that any comprehensive rule, made in haste, and under a pressure of business, would probably be ill adapted to meet the contemplated purpose. It is certain that the most experienced and the most learned and able of our judges, have commonly abstained the most scrupulously from throwing out general propositions which were not as proximate as possible to the case awaiting solution: Though (for the reasons which I stated in my last Lecture, and to which I shall revert immediately) the ratio decidendi (or ground or principle of decision) is necessarily a general position applying to a class of cases, and does not concern exclusively the particular case in question. I have heard Lord Eldon declare (more than once) that nothing should provoke him to decide more than the decision of the case in question absolutely required.

[Conversely, the reason may be too large. And hence the necessity of narrowing it by distinctions.]

A seventh tenable objection to judiciary law.

659Seventhly: wherever much of the law is judiciary law, the statute law which co-exists with it, is imperfect, unsystematic, and bulky.

For the judiciary law is, as it were, the nucleus around which the statute law is formed. The judiciary law contains the legal dictionary, or the definitions and expositions (in so far as such exist) of the leading technical terms of the entire legal system. The statute law is not a whole of itself, but is formed or fashioned on the judiciary law, and tacitly refers throughout to those leading terms and principles which are expounded by the judiciary.—And hence, as I shall shew immediately, arises the greatest difficulty in the way of codification. For, in order to the exclusion of the judiciary law, and to the making of the code a complete body of law, the terms and principles of the judiciary must not be assumed tacitly, but must be defined and expounded by the code itself: A process which people may think an easy one—until they come to try it.

Wherever, therefore, much of the law consists of judiciary law, the statute law is not of itself complete, but is merely a partial and irregular supplement to that judiciary law which is the mass and bulk of the system. The statute law is not of itself an edifice, but is merely a set of irregular or unsystematic patches stuck from time to time upon the edifice reared by judges.

It is true that a body of statute law (though it be not stuck patchwise on a groundwork of judiciary law) may be irregular and bulky.

This is actually the case with that portion of the Prussian law which has been made from time to time for the purpose of amending the Code. This is done by the Prussian Law Commission, by virtue of a provision that when the Courts are in doubt, they shall refer the case to the Commission, who solve the question of law, but leave untouched the decision of the last Court of Appeal on the particular case.⁸⁰ Now the amount of the declaratory laws made by this Commission is already many times the bulk of the Code which they are intended to explain. This, however, arises mainly from the original bad construction of the Prussian Code, and the neglect of the Government in not remodelling the Code from time to time, and inserting the amendments which have been suggested by experience.

660The evil therefore is not of the essence of statute law, though the bulk of the latter is often in point of fact as formidable as that of judiciary law.

And there is this essential difference between a complete body of statute law, and a body of statute law stuck patchwise on a groundwork of judiciary law. The latter must be irregular; must be bulky; and therefore must be difficult of access. The latter may be systematic; may be compact; and therefore may be (in the language of Mr. Bentham) cognoscible.

Wherever, therefore, much of the law consists of judiciary law, the entire legal system, or the entire corpus juris, is necessarily a monstrous chaos: partly consisting of judiciary law, introduced bit by hit, and imbedded in a measureless heap of particular judicial decisions, and partly of legislative law stuck by patches on the judiciary law, and imbedded in a measureless heap of occasional and supplemental statutes.

Introduction to question of codification.

Since such are the monstrous evils of judicial legislation, it would seem that the expediency of a Code (or of a complete or exclusive body of statute law) will hardly admit of a doubt. Nor would it, provided that the chaos of judiciary law, and of the statute law stuck patchwise on the judiciary, could be superseded by a good code. For when we contrast the chaos with a positive code, we must not contrast it with the very best of possible or conceivable Codes, but with the Code, which, under the given circumstances of the given community, would probably be the result of an attempt to codify.

Whoever has considered the difficulty of making a good statute, will not think lightly of the difficulty of making a Code.

To conceive distinctly the general purpose of a statute, to conceive distinctly the subordinate provisions through which its general purpose must be accomplished, and to express that general purpose and those subordinate provisions in perfectly adequate and not ambiguous language, is a business of extreme delicacy, and of extreme difficulty, though it is frequently tossed by legislators to inferior and incompetent workmen. I will venture to affirm, that what is commonly called the technical part of legislation, is incomparably more difficult than what may be styled the ethical. In other words, it is far easier to conceive justly what would be useful law, than so to construct that same law that it may accomplish the design of the lawgiver.

Accordingly, statutes made with great deliberation, and by learned and judicious lawyers, have been expressed so obscurely, 661or have been constructed so unaptly, that decisions interpreting the sense of their provisions, or supplying and correcting their provisions ex ratione legis, have been of necessity heaped upon them by the Courts of Justice. Such, for example, is the case with the Statute of Frauds; which was made by three of the wisest lawyers in the reign of Charles the Second: Sir M. Hale (if I remember aright) being one of them.

And here I may remark, that, unless a statute be well made, it commonly is more uncertain than a rule of judiciary law.

In performing the process of induction (described in my last Lecture) by which a judiciary rule is extracted from a particular decision, the interpreting judge is not tied to the expressions which his legislating predecessor has actually employed. He may collect the ratio decidendi (or the general ground or principle which constitutes the rule that is sought) from any indicia whatever which the case or its circumstances may afford.

But a judge who interprets or construes (in the proper sense of the word) a provision of a statute law, is tied to the very expressions in which the provision is given. And looking at those very expressions, and at the design of the provision and the statute, he may find it impossible to determine with certainty the import of the provision. For the expressions in which it is conceived may seem to say one thing, whilst the particular scope of the provision, or the predominant design of the statute, may indicate a different meaning. Now if he might gather the meaning from any indicia (like the judge who extracts a rule from a judicial decision) he would find no difficulty. He would resort at once to the design of the provision, or the design of the whole statute, and put upon the terms of the provision such a construction as would make the legislator consistent with himself. But being obliged to attend partly to the probable grammatical meaning of the very terms, he can hardly decide with a perfect assurance that he is construing the statute correctly.

Its very want of a precise form renders a judicial rule (in spite of its inherent uncertainty) less uncertain than a badly constructed statute.

It is hardly necessary to add, that I limit the remark to a badly constructed statute. For no judicious or candid man will doubt or dispute for a moment, that a well-made statute is incomparably superior to a rule of judiciary law.

662It follows from what I have premised, and will appear clearly from the remainder of my discourse, that the question of codification is a question of time and place. Speaking in abstract (or without reference to the circumstances of a given community) there can be no doubt that a complete code is better than a body of judiciary law: or is better than a body of law partly consisting of judiciary law, and partly of statute law stuck patchwise on a body of judiciary.

But taking the question in concrete (or with a view to the expediency of codification in this or that community) a doubt may arise. For here we must contrast the existing law (not with the beau idéal of possible codes, but) with that particular code which an attempt to codify would then and there engender. And that particular and practical question (as Savigny has rightly judged) will turn mainly on the answer that must be given to another: namely, Are there men, then and there, competent to the difficult task of successful codification? of producing a code, which, on the whole, would more than compensate the evil that must necessarily attend the change? The vast difficulty of successful codification, no rational advocate of codification will deny or doubt. Its impossibility, none of its rational opponents will venture to affirm.

Before I proceed to the question, I beg leave to explain a remark which I made last evening.—When I said that the question of codification lay in a narrow compass, I meant, that little could be said pertinently about the question in abstract. The question in concrete (or with reference to a given community at a given time) involves, of course, a considerable number of particular considerations: considerations, however, which fall not within my design, and to which, therefore, I did not advert. And in order to shew the little which can be said about the question in abstract, it is necessary to shew the impertinence of almost all the arguments which have been adduced by the advocates on each of the two sides. To strip the question of those impertinent arguments, and to shew how little can be said about it in a pertinent manner, is therefore a task of considerable length, although the pertinent considerations occupy a narrow space.

In my opinion, a mere statement of the evils inherent in judiciary law, is amply sufficient to demonstrate (considering the question in abstract) that codification is expedient.

I have above enumerated the principal evils inherent in a 663body of judiciary law, or in a body composed of judiciary law and statutes supplementary to it; that is to say, of law uncodified. Any direct proof other than this of the expediency of codification is superfluous.

In considering, therefore, the question of codification (to which I now proceed), I shall merely shew the futility of the leading or principal arguments which are advanced against codification considered generally or in abstract. A consideration of its expediency here or there, would involve particular considerations beside the scope of my Course, and surpassing the space and time which I can afford to assign to the subject.

Before I advert to those arguments, I would briefly interpose the following remarks:—

In speaking of the advantages and disadvantages of statute and judiciary law I advert to the form and not to the matter. It is clear that these considerations are completely distinct. It is clear that judiciary law of which the purposes are beneficent, may produce all the evils on which I have insisted. It is clear that statute law, well arranged and expressed, may aim at pernicious ends.

In like manner, codification does not involve any innovation on the matter of the existing law. It is clear that the Law of England might change its shape completely, although the rights and duties which it confers and imposes remained substantially the same. In treating of codification, I consider law from its merely technical side, or with a view to the consequences, good or evil, of arrangement and expression.

These distinct ideas are often confounded. The opponents of codification often suppose it to mean an entire change of all the law obtaining in the country.

First leading objection to codification.

The first and most current objection to codification, is the necessary incompleteness of a code. It is said that the individual cases which may arise in fact or practice, are infinite; and that, therefore, they cannot be anticipated, and provided for, by a body of general rules. The objection (as applied to statute law generally) is thus put by Lord Mansfield in the case of Omychund and Barker. [He was then Solicitor-General.] ‘Cases of law depend upon occasions which give rise to them. All occasions do not arise at once. A statute very seldom can take in all cases. Therefore the common law that works itself pure by rules drawn from the fountains of justice, is superior to an act of parliament.’

My answer to this objection is, that it is equally applicable 664to all law: and that it implies in the partisans of judiciary law (who are pleased to insist upon it), a profound ignorance, or a complete forgetfulness, of the nature of the law which is established by judicial decisions.

Judiciary law consists of rules, or it is merely a heap of particular decisions inapplicable to the solution of future cases. On the last supposition, it is not law at all: And the judges who apply decided cases to the resolution of other cues, are not resolving the latter by any determinate law, but are deciding them arbitrarily.

The truth, however, is, as I shewed in my last Lecture, that the general grounds or principles of judicial decisions are as completely Law as statute law itself, though they differ considerably from statutes in the manner and form of expression. And being law, it is clear that they are liable to the very imperfection which is objected to statute law. Be the law statute or judiciary, it cannot anticipate all the cases which may possibly arise in practice.

The objection implies, that all judicial decisions which are not applications of statutes are merely arbitrary. It therefore involves a double mistake. It mistakes the nature of judiciary law, and it confounds law with the arbitrium of the judge. Deciding arbitrarily, the judge no doubt may provide for all possible cases. But whether providing for them thus be providing for them by law, I leave it to the judicious to consider.

Yet this objection is insisted on by many of the redactors of the French Code, whom one might almost suppose to be enemies of codification, and desirous to defeat the purpose of the code which they were appointed to make. In the Conférences du Code Napoléon, a work containing a report of the discussions in the Council of State upon the original project of the code, Portalis says that a code can provide only very imperfectly for the variety of cases which arise, and that much must be left to le bon sens and l’équité. Now if le bon sens and l’équité, that is, the arbitrium of the judge, are to decide, I cannot see the use of all the pother about legislation. So far as the judge’s arbitrium extends, there is no law at all.

If law, as reduced into a code, would be incomplete, so is it incomplete as not so reduced. For codification is the re-expression of existing law. It is true, that the code might be incomplete, owing to an oversight of redactors. But this is an objection to codification in particular.

665Hugo’s objection⁸¹ proceeds on the mistake of supposing that a Code must provide for every possible concrete case. But this (as I have shewn already) is what no law (statute or written) can possibly accomplish. It would be endless.

His objection is, that if a body of law affected to provide for every possible question, its provisions would be so numerous that no judge could embrace them: And as to the cases which it left undecided (which would necessarily be numerous) the conflicting analogies presented by those cases would be in exact proportion to the number and minuteness of its provisions.

As to the first part of the objection, it is necessary to provide à priori for cases to arise in future, or to leave such cases to the mere arbitrium of the judge. And I would submit, that you do not obviate the incompleteness inherent in statute law by making no law.

The second part of the objection is founded on the supposition that the provisions of a code are more minute and numerous than the rules embraced by a system of judiciary law: that the more minute and numerous the rules, the more likely it is that they will conflict; and that, in trying to apply the law to a given case, a conflict of opposite rules will arise.

Now it seems to me that this is the reverse of the truth.

As I have shewn above, a rule made by judicial decision is almost necessarily narrow: whilst statute laws may be made comprehensively, and may embrace a whole genus of cases, instead of embracing only one of the species which it contains.

And which, I would ask, is the most likely to be bulky and inconsistent: A system of rules formed together, and made on a comprehensive survey of the whole field of law? or a congeries of decisions made one at a time, and in the hurry of judicial business?

Repetition and inconsistency are far more likely where rules are formed one by one (and, perhaps, without concert by many 666distinct tribunals), than where all are made at once by a single individual or body, who are trying to embrace the whole field of law, and so to construct every rule as that it may harmonise with the rest.

And here I would make a remark which the objection in question suggests, and which, to my understanding, is quite conclusive.

Rules of judiciary law are not decided cases, but the general grounds or principles (or the rationes decidendi) whereon the cases are decided. Now, by the practical admission of those who apply these grounds or principles, they may be codified, or turned into statute laws. For what is that process of induction by which the principle is gathered before it is applied, but this very process of codifying such principles, performed on a particular occasion, and performed on a small scale? If it be possible to extract from a case, or from a few cases, the ratio decidendi, or general principle of decision, it is possible to extract from all decided cases their respective grounds of decisions, and to turn them into a body of law, abstract in its form, and therefore compact and accessible.

Assuming that judiciary law is really law, it clearly may be codified.

Reverting to the objection, I admit that no code can be complete or perfect. But it may be less incomplete than judge-made law, and (if well constructed) free from the great defects which I have pointed out in the latter. It may be brief, compact, systematic, and therefore knowable as far as it goes. And many devices may be hit upon, which have never yet been thought of, or which have been neglected, for removing the defects incident to codes.⁸² That the defects of the French and Prussian codes, in the original conception and construction, render them necessarily imperfect and no fair sample of possible codes, will be seen in the sequel.

Second objection to codification—failure of the French and Prussian codes—examined.

A second objection to codification is founded on the alleged ill success of the so-called codes which have been compiled in France, Prussia, and other countries, by order of the government, and established as law by its authority. I now proceed to consider this objection, and shall afterwards note various objections which have been made to codification by Savigny, in his 667specious but hollow treatise on that subject.⁸³ The professed purpose of the treatise is not to deny the expediency of codification generally, but to shew its inexpediency in Germany at the present time. In so far as his arguments apply to the professed and proper purpose of his work, I have no concern with it; for the advantages or disadvantages of codification in the abstract, are the subjects to which I confine myself. But his arguments are often aimed directly, and oftener obliquely, against codification in general; and so far as they are so, they fall within my scope. In the course of his book he adverts to the objection which I first mentioned, that which is founded upon the necessary incompleteness of a code, and also to the second, the ill success of the codes which have been already established. I shall, therefore, in considering this objection, occasionally advert to Savigny’s book; reserving the special examination of it for the latter portion of the present Lecture.

With respect, then, to the alleged ill success of the codes already established, it must be admitted that they have not accomplished the primary ends of a code in the modern sense of the term, that is, a complete body of law intended to supersede all the other law obtaining in the country. In France and Prussia, to the codes of which countries I shall confine my remarks, the law does not possess that compactness and accessibility, which are the main ends of codes as such; for the matter and substance of the law must be excluded from consideration, as things with which the question of codification has little connection.

In France, the code is buried under a heap of subsequent enactments of the legislature, and of judiciary law subsequently introduced by the tribunals. In Prussia, the mass of new laws and authoritative interpretations which have been introduced subsequently by the promulgation of the code, fills, I believe, about thirty quarto volumes, the code itself consisting of eight or ten.

And here I may remark that the so-called Prussian code was not intended by its author, the great Frederic, or by the persons whom he employed to draw it up, as a code in the modern acceptation, that is, a complete body of law. In most of the German States before the introduction of codes, the state of the law was as follows:—they were partly governed by their own local laws, and partly by what was called Gemeines Recht, 668or common law of Germany, consisting in part of the Roman and the Canon law, in part of rules of domestic or strictly German growth, which were got at by comparing the different local systems in the way of abstraction and induction. This common law was resorted to in cases for which the local laws or customs of the different States did not afford a solution. Now the Prussian code was not intended to codify all the law obtaining in Prussia, but only this subsidiary common law; leaving the codification of the different laws obtaining in particular parts of the Prussian dominions to a future opportunity. This was all that it intended, and this is all that it has performed. And although the code has now been in force for nearly half a century, none of the local laws of any districts of the Prussian dominions have yet been codified, except those obtaining in a very small part of that kingdom, the district called East Prussia.

I may also observe that, by virtue of a provision of the code, præjudicia or precedents have no authority. The Courts are expressly forbidden to guide their decisions by the decisions of their predecessors. Consequently, although the code is overwhelmed by a quantity of explanation, no judiciary law, properly so-called, has been stuck upon it. As I have mentioned more than once, all doubtful points of law are referred to a Law Commission, who emit a declaratory law on the occasion of every case so submitted to them. The thirty volumes or thereabouts of supplementary law which I have already mentioned axe, in consequence, not decisions on the code, but acts of authoritative interpretation, issued immediately by the government. This at least is the theory of the Prussian system. In practice I believe that præjudicia or decided cases do influence the decisions of the Courts. For it is certain that reports of decided cases are published regularly at Berlin; and I can conceive no motive for publishing them if they were not cited in the Courts, and did not influence the judgments of the Courts. They probably have an influence similar to that which the decisions of the English Courts are known to have in the United States. It cannot be said that the decisions of the Court of King’s Bench have authority in New York, but they do in fact influence the conduct of the American tribunals. The treatises of reputation which appear in this country on the law, are frequently republished in the United States, with notes by American lawyers. I have myself seen a copy of an American edition of Sugden on the Law of Vendors and Purchasers.

These codes have failed, not as codes, but by reason of their faulty construction.

To return to my more immediate subject. The ill success 669of particular codes, admitting their failure to be as complete as is affirmed, would prove nothing against codification. Those who would make it tell as an objection to codes in general, must shew that the particular codes in question have failed as being codes, or by virtue of the qualities belonging to them as codes, not by defects peculiar to the codes in question; defects merely accidental, which care and skill might have obviated. This self-evident truth the objectors to codification never saw, or disingenuously passed over. They first boldly affirm, contrary to the fact, that the French and Prussian codes have completely failed, and then infer from the failure, that successful codification is universally impracticable. They first misstate or distort and exaggerate the fact; and then, on the fact so misstated or exaggerated, they found a sophistical inference.

The inconsistency of Savigny is here remarkable; for he himself in the very work in which he urges the failure of the French and Prussian codes as an argument against codification, points out defects both in the conception and in the construction of those codes, which, on his own shewing, were anything but inevitable. He treats the authors of the French code with merited severity for their gross incompetency to their task, yet he brings forward the defects in their workmanship as a reason against codification in Germany, and against codification in general. He in fact argues thus: Here is a code swarming with defects which were anything but unavoidable; defects so gross and flagrant, that the authors richly merit the critical lash which I am now mercilessly laying on them: ergo codes and codification are manifestly naught.

To shew that the objection is untenable, I shall advert to various accidental circumstances which are quite sufficient to account for the imperfections of the French code, and to prove that the objection is the merest sophistry; I shall mainly confine my observations to the French code, because its failure is the most remarkable, and because it is the best known, or the only one which is known, to English lawyers. Some of its faults are mentioned by Savigny; others, which are more important, he has not mentioned.

First defect in the French code it is totally devoid of definitions of the technical terms, and explanations of the leading principles of the French law.

The first glaring deficiency of the French code is the total want of definitions of its technical terms, and explanations of the leading principles and distinctions upon which it is founded. This grievous defect Savigny has not mentioned. Without definitions of the technical terms and explanations of the leading principles and distinctions, the particular provisions of the code 670must be defective and incoherent, and its language dubious. For, unless these leading principles are habitually present to the minds of the authors, how are they to thread with certainty the labyrinth of the details? How can they follow the principles to all their consequences? Unless the technical terms are employed everywhere precisely in the same meanings, how are they to express themselves without ambiguity? But unless the leading principles and distinctions are defined, how are those leading principles and distinctions to be constantly present to the minds of the codifiers in a definite shape? and unless the technical terms are defined, how are those terms to be uniformly employed in the same meanings? Again, unless both sets of definitions are contained in the code itself, the judges and all other persons who have occasion to apply it, must be perpetually at a loss for the meaning. Although a code may be constructed with consummate care and skill, none of its detailed provisions can ever be complete in itself: unless viewed in conjunction with the other details and with the leading principles, a particular provision can have no complete meaning. Unless, therefore, the code contains a statement of leading principles as well as details, the code itself does not furnish the necessary guides to its own meaning; if those guides exist at all, they exist en dehors of the code.

Now, of the necessity of explanations of the leading principles and distinctions and of definitions of the technical terms, the compilers of the French code had no idea. The principles and distinctions they tacitly borrowed from the ancient law, and clothed them in the technical terms of the same law, without any attention to determining the meaning of those terms, under a tacit assumption that it is known and certain. Moreover, the French code is not a body of law, or is not a body of law forming a substantive whole. It is nothing but a loose abstract of the former law, or an index to a body of law existing dehors itself. This very defect in the French code is one principal cause of the fallacious brevity which its injudicious admirers have frequently selected as matter of praise; forgetting that the brevity which arises from incompleteness, in the end leads to unnecessary bulk from the mass of supplemental statutes and decisions which it of necessity gives rise to. The code is consequently defective and incoherent, and is often expressed dubiously: and in order to correct its defects and incoherences and to explain its meaning, the old law to which it constantly refers has been let in by the Courts upon it; and an immense 671body of jurisprudence (in the French sense of the term) introduced by the tribunals, obtains as law by the side of it. From the original defect in the conception of the code, this was a necessary consequence: but it might manifestly have been obviated.

So the Prussian code.

The Prussian code has the same vice. Being based on the Roman law, it refers throughout to the principles and distinctions of the Roman law, and borrows the technical language of that system, without the requisite explanation of the import of that language. A knowledge of the Roman law, and of the other systems of law previously obtaining in Germany, is still a necessary preliminary to a study of the code. The code has not superseded completely the old subsidiary or common law which it was intended to supplant.

It is remarkable that the authors of Justinian’s compilations, in spite of their general incompetency, had some notion of the necessity of explaining in the code itself, its leading principles and distinctions, and defining its technical terms. The compilers of the French code seem to have had no such idea at all. Justinian, if we judge from the prefaces to his compilations, intended those works to supersede the law of which they were bungling abridgments; and he accordingly forbids the judges thereafter to resort to the old law or to the old law authorities. To render needless this recourse, he has hit upon two devices. The first of these is an attempt, though executed very imperfectly, to insert definitions of certain leading terms: the last title but one of the Pandects is de verborum significatione. The second is an attempt to define certain of the legal rules (regulæ juris) which run through the whole law. Another means was also taken to render reference to the previous law unnecessary: this was the insertion in the Pandects, and in various places in the code, of much historical matter; much similar matter is also left in the excerpts, for the clearer understanding of those excerpts. This historical matter is unskilfully inserted, and has often been confounded by modem commentators with the imperative part of the law; whereby they have been led to imagine the Pandects to be more inconsistent than they really are; fancying they found antinomies where they are indeed two contradictory laws, but where one only is inserted as law; the other is only referred to as an historical fact in order to explain something else.

It may be said, that it is impossible to give in the code itself explanations of the leading principles and distinctions, and 672definitions of the technical terms. My answer is, that it is undoubtedly difficult, but it cannot be impossible; for the principles and distinctions must exist somewhere: and the terms must have a determinate meaning, which it must be possible to find: and though the principles and distinctions and the meanings of the terms may be imbedded in much other matter, they may be extracted and put into an abstract shape.

Failure of the Prussian and French codes grossly exaggerated.

After all, the alleged ill success of the French and Prussian codes is greatly exaggerated. They at least give a compendious, though a defective, view of the old law; they have cleared it of a load of inconsistencies and much reduced its bulk, though they have not superseded it completely. If any Frenchman or German of the requisite knowledge is asked whether the code, even as it is, be preferable or not to the law in its previous state, he does not hesitate to say that it is greatly preferable, and that the quantity of litigation arising from doubt as to the law is very greatly diminished. I know this to be the opinion of several Frenchmen who are in every respect competent witnesses, and I never met with any German practitioner who did not laugh at the objections made to codification by the professors in the Universities. The truth is that in Germany the enemies of codification are not the practising lawyers, but (what one would not have expected) the theorists: chiefly the professors of the Roman, the Canon, and the old German law: partly no doubt from attachment to the systems of law with which they are conversant, partly from fear lest the demand for a knowledge of that old law might be superseded, if codes were introduced: a fear, I believe, wholly unfounded as far as regards the Roman law, and the history of German law. It is obvious that no instructed body of lawyers will ever confine themselves to the study of a code, how perfect soever it may be. Unless the history and philosophy of law were well understood, no good code could possibly be constructed: and unless those branches of knowledge continued to be studied, a good code, even when constructed, would infallibly deteriorate.

The French code never intended by its authors to be a code, properly so called—that is to supersede all other law; but meant to be eked out by various subsidia.

Another defect of the French code is pointed out by Savigny. It appears from the Conférences or discussions in the Council of State upon the project of the Code, that it was not the design of the compilers to make it a code in the modern sense of the term, that is, a complete body of statute law. In those discussions they refer perpetually to various subsidia with which it is to be eked out. Of these subsidia, as of the work itself which they were engaged in, they had no definite notion: but in the 673main they intended that where the code should not be found sufficient, the Courts should decide by what they called usage and doctrine: that is, the customary law previously obtaining within the resort of the particular Court, and the jurisprudence commonly followed by former tribunals within that same resort. To shew the indefiniteness of their notions, I shall mention some of the subsidia which are referred to in their discussions. 1. Équité naturelle, loi naturelle. 2. The Roman law. 3. The ancient customs. 4. Usage, exemple, décisions, jurisprudence. 5. Droit commun. 6. Principes généraux, maximes, doctrine, science. It thus appears that they intended to leave many of the points which the code should have embraced to usage and doctrine: that is, to the tribunals as guided by usage and doctrine, not by the code itself. This arose partly, no doubt, from a leaning in favour of the old institutions in which they had been trained up, but chiefly from loose conceptions of the nature of a code. Thibaut, who, though a strong advocate of codification, entertains a boundless contempt for the authors of the French code, says of them that whenever they fell upon a subject which they knew not how to handle, they left it to jurisprudence: that is, to the old law previously obtaining, to such new dispositions as the Courts might thereafter introduce, or to the mere arbitrium of the tribunals. How, then, is it possible for any candid person to argue, that when the very authors of the so-called French code did not intend to make it a code which should supersede all other law, its not having done so is a proof that what they did not attempt cannot be accomplished?

Monstrous ignorance of the authors of the French code with regard to the Roman law.

In my future Lectures, when treating of the law of persons and of things, and other questions of arrangement, I shall point out the principal defects in the details of the code, and the ignorance of the principles and distinctions of the Roman law which it evinces. At present I shall mention one monstrous example of this ignorance. Without a distinct conception of the distinction between jura in rem and jura in personam, or (as it was expressed by the classical jurists) between dominia and obligationes, no clear conception can be formed of the general structure of the Roman Law, or indeed of what must necessarily be the structure of any body of law whatever. Now, as Savigny remarks, the authors of the French code have never conceived this distinction at all, or at least have never conceived it in its whole universality, but only here and there in particular instances. The darkness, confusion, and incoherency which have been introduced by the want of a clear conception of that distinction, is 674scarcely conceivable. Among other blunders into which it has led the authors of the codes, they have adopted the antiquated and false doctrine which I have mentioned in a former Lecture about titulus and modus acquirendi, and have spoken of property as being the consequence of obligations, a profundity of ignorance the more unpardonable because a mistake of the same kind had already been committed in the Prussian code. By the authority of the Chancellor Von Kramer, overruling Suarez (the man of real capacity among the framers of the Prussian code) the head of contracts had been stuck into dominium, under the erroneous notion that every acquisition of property is preceded by a modus acquirendi: that is, obligationes had been stuffed into the opposite department of dominium or property. This blunder had been so much commented upon by German writers, that the compilers of the French code ought to have been thoroughly acquainted with the merits of the controversy. But, knowing nothing about the matter, instead of clearing up they have only thickened the confusion.

Extreme haste with which the French code was drawn up.

Another and a perfectly sufficient reason for the defects of the French code is the extreme haste with which it was drawn up. The original projet was prepared, in little more than four months, by a commission consisting of Tronchet, Malléville, Portalis, and Bigot-Préameneu; it was then submitted to the Council of State, where it was discussed article by article. But it is obvious that the examination it received in the debates of this numerous body, many of whom were not even lawyers, could have no tendency to correct the vices in the original conception. The Council of State had in fact no notion whatever of the technical part of legislation. Accordingly, while many pages and chapters in the Conférences relate to legislative points of hardly any importance, scarcely the slightest notice was taken of many most important questions of arrangement and expression. In the case of a code, as of everything that should be systematic, the excellence of the first conception is everything; and no alteration in the mere details can cure vices in the original conception.

Of the profound ignorance of the authors of the code on the subject of the Roman law, on which the then existing French law was wholly founded, and of which in truth the code itself is little but a réchauffée, Savigny mentions numerous instances. They had indeed a superstitious veneration for the Roman law, but they knew scarcely anything of it: what they knew was derived solely from Justinian’s Institutes, and from the various 675popular compendia which for the most part follow the Institutes. And this accounts for many of the defects of the code. It explains their having passed over many highly important questions of law, because these did not fall within the scope of that institutional treatise, or of the many popular expositions founded on it.

No provision for amending the Prussian and French codes, and for keeping down the growth of judiciary and supplemental law by working them into the code from time to time.

As I remarked, no code can be perfect; there should therefore be a perpetual provision for its amendment, on suggestions from the judges who are engaged in applying it, and who are in the best of all situations for observing its defects. By this means the growth of judiciary law explanatory of, and supplementary to, the code, cannot indeed be prevented altogether, but it may be kept within a moderate bulk, by being wrought into the code itself from time to time. In France this has been completely neglected; a fact which would of itself suffice to account for the alleged failure of the code. An endless quantity of judiciary law has been introduced; acts of the legislature and ordonnances of the King issued by authority of the legislature, have been emitted from time to time separately; but there has been no attempt to work them into the body of the code. So with the Prussian code. The Novels or new constitutions, and the acts of authentic interpretation emanating from the Law Commission exist in a separate state; there has been no attempt to work them into the code, or to amend it in pursuance of them.

The accidental defects which I have now mentioned, as well as others which I shall advert to hereafter, and many on which I shall be silent, account for the partial failure of the Prussian and French codes, not to mention that this failure has been grossly exaggerated. After all, these codes are great improvements on the former state of the law.

Savigny’s objections to codification examined.

I now proceed to notice the objections which have been particularly urged by Savigny, in his treatise Vom Beruf, etc. (on the Vocation of our Age to Legislation and Jurisprudence). The professed purpose of this work is, as I have already mentioned, to prove the inexpediency, not of codification in general, but of codification for a part of Germany, and especially of a code proposed by Thibaut. So far, therefore, as the work is in keeping with its professed purpose, it does not apply to codification in general or in the abstract, but to codification, and to a specific scheme of the codification at a given place and time. So far, the warmest partisan of codification might assent to Savigny’s conclusion without renouncing his own general views. But while pursuing this ostensible purpose, Savigny employs 676many arguments which either directly or obliquely impugn codification considered generally or in the abstract; and so far as this is the case, his work falls within the scope of my present examination. I advert to these arguments on account of the attention which is due to whatever emanates from a man of Savigny’s genius and learning, and because, if his objections can be answered completely, those of other and inferior persons may safely be dismissed without notice.

Savigny is not absolutely an enemy to codification, as the purpose of his book proves; for if he thought he could prove generally that codes are good for nothing, he would scarcely insist upon arguments peculiar to that particular juncture. He is himself an advocate for a code, even in Germany, to a certain limited extent: he holds a code to be expedient, if it could be confined to the codification of the existing law, without affecting to anticipate future cases. This is in reality an admission almost of the whole question. Most of the partisans of codification would be extremely well content to have a concise and clear description of the law actually existing, and actually applied to past cases, which description would of course be applicable to all future cases resembling those past ones. Savigny thus gives up almost the whole question. As to the anticipation of cases which have not actually arisen, nor resemble any which have actually arisen, it is impossible that any code can include them completely; but judiciary law is in a much worse plight for this purpose than a code; for the reason so well stated by Sir Samuel Romilly, namely, that judiciary legislation is necessarily extremely narrow, being confined to the very case on the occasion of which the rule is introduced, or to cases proximately or closely resembling that case. Although the judicial legislator may see at the very time a variety of analogous cases, which he might provide for by a complete law, he is obliged to confine himself to the narrowest possible generalisation. It is, therefore, clear, that although a code cannot exhaust all future cases, judiciary law is in this respect more imperfect still.

Savigny himself suggests one of the best arguments for the possibility of codification, by shewing that one of its greatest difficulties is not insurmountable. In arguing against codification in Germany, he is led to examine the worth of the law now obtaining which a code would supersede. This law is mainly founded on the Roman law; and he is thus led to speak of the Roman law. In speaking of this legal system, or of the 677portion of it which was made by the writings or opinions of jurisconsults, and which is known in Germany by the distinctive name of Pandect law, he is led to admit and praise its coherency. Although, it was made in succession by a series of jurisconsults continuing for more than two centuries, each of these jurisconsults was so completely possessed of the principles of the Roman law, and they were all so completely masters of the same mode of reasoning from and applying those principles, that their successive works have the coherency commonly belonging only to the productions of one master mind. Leibnitz and others had remarked, that of the forty jurisconsults (or thereabouts), of excerpts from whose writings the Pandects are composed, the passages from any one are so like those from all the others in manner and style, that it is impossible from internal evidence to distinguish them. Leibnitz expressed this by rather an odd phrase, borrowed from the Roman law itself, calling them fungible persons: res fungibiles being the technical term for articles which are bought and sold in genere, not individually. Each of these writers was master of the Roman law in its full extent; each had the whole of its principles constantly present to his mind, and could argue down from them and apply them with the greatest certainty. Now this suggests an answer to the greatest difficulty about codification. For the greatest practical difficulty in accomplishing it is, that the code cannot possibly be made by one mind; and if made by a number, would probably not be coherent. Now if the production of a succession of jurisconsults, filling two centuries, possesses perfect coherency, à fortiori it is possible that a body of law may be equally coherent if produced by a number of persons working in concert, provided they be as fully masters of its principles, and as capable of arguing from them and applying them, as the Roman lawyers were. Such a set of persons would be in a much more favourable position for producing a homogeneous and consecutive whole than persons working in a disjointed and unconnected manner.

But in spite of Savigny’s admission of the expediency of codification in a limited sense, and his suggestion of a ground for believing it to be practicable, many of his arguments are directly, and still more of them obliquely, aimed at codification in general. I have already adverted to two of these: the impossibility of anticipating all future cases, and the alleged failure of past attempts at codification. All the remainder of his arguments are equally fallacious, and some of them almost too ridiculous to mention.

678One is the assumption that no determinate leading principles will be followed consistently by the makers of the code, and therefore its provisions must be defective and incoherent. This argument applies only where the makers of the code are incapable of defining and conceiving distinctly and steadily the leading principles of their own system. It applies to the authors of the French code, but, by his own admission, not to the Roman lawyers.

Secondly: he asserts that in an age capable of producing a good code, no code could be necessary. Because Papinian and the other great jurisconsults who made the Roman law were able lawyers, and because good expositions of the law have been made by private hands, does it follow that a code is useless? Good expositions, and good judiciary law made by able jurisconsults, do not supply the demand for a code, though they render it somewhat less necessary. Savigny falls into the extreme absurdity of putting expositions of the law by private hands precisely on a level with the codification of it by the authority of the supreme legislature. The exposition may be just as well constructed as the code, but the essential difference will remain, that the one is authorised and the judge is bound to abide by it; the other is no expression of the will of the sovereign, and the judge is not obliged to follow it: which makes all the difference between uncertain and certain law.

Savigny affirms, contrary to the fact, that during the times of the classical jurists the want of a code or digest was not felt. This assertion is directly in the teeth of a passage of Suetonius, quoted by himself at the bottom of the very same page, where that author mentions it as a purpose of Cæsar, jus civile ad certum modum redigere, atque er immensâ diffusâque legum copiâ, optima quæque et necessaria in paucissimos conferre libros. Livy also, who lived at the beginning of the period of the classical jurists, and Tacitus, who, like Suetonius, lived about the middle of the same period, speak in the same strong terms as Suetonius of the enormous bulk of the law, shewing the want of a code or digest to have been generally felt.

That a code constructed in an age incapable of making a good one, has a tendency to give perpetuity to the ideas of that incapable age, may to a certain limited extent be true. And this leads me to advert to the strange assumption of Hugo and other enemies of codification, that the code when made will be unalterable, and will therefore transmit to more enlightened ages the comparatively bad legislation of a comparatively dark 679one. I cannot understand why any such absurd supposition is entertained.

Another equally absurd argument is this: that all law is not in all respects the work of the sovereign legislature, but is very generally formed from customs which were rules of positive morality anterior to their adoption by the legislator. In this there is nothing new; nothing that has not been known at all times. From this, however, some of the German jurists infer—I cannot conceive how—that codification itself is bad.

The idea darkly floating before their minds may be, that legislation ought to be governed by actual experience of the wants and exigencies of mankind. And here I would remark that a great mistake is often made with respect to Bentham’s notions of law. Bentham belongs strictly to the historical school of jurisprudence. The proper sense of that term as used by the Germans is, that the jurists thus designated think that a body of law cannot be spun out from a few general principles assumed à priori, but must be founded on experience of the subjects and objects with which law is conversant Bentham therefore manifestly belongs to this school. He has again and again declared in his works that the reports of the decisions of the English Courts are an invaluable mine of experience for the legislator. The character of the historical school of jurisprudence in Germany is commonly misconceived. They are imagined to be enemies of codification, because one or two of the most remarkable individuals among them, such as Hugo and Savigny, are so; but many others, Thibaut for example, are its zealous friends. The meaning of their being called the historical school is simply this, that they agree with Bentham in thinking that law should be founded on an experimental view of the subjects and objects of law, and should be determined by general utility, not drawn out from a few arbitrary assumptions à priori called the law of nature. A fitter name for them would be the inductive and utilitarian school.

Another strange objection made by Savigny to codification is this: He assumes that it is bad, because its effect would be to make the necessary defects of the law more visible; so that persons knavishly inclined might avail themselves of the bad parts of the law to injure other people. This is a mere repetition of the old argument for law taxes, that they check litigation. It assumes that the law is inevitably uncertain, and that no attempt should be made to secure rights, lest, by the abortive attempt, knaves should be apprised of their hopeless insecurity. The 680objection moreover conflicts with itself; for if the defects of the law are rendered more conspicuous by codification, codification must tend to cure those defects. If they are made to stand out more clearly by codification, this must tend to their correction.

Another argument, which none but those who know the Germans can appreciate, is this: that if a code could be made mechanically and without any difficulty at all, this would be a reason for rejecting it. An assumption that difficulty is good for its own sake. The merit of removing the difficulty is great, ergo it is inferred that a code, if it can be made easily, cannot be good. Such an argument from such a man may well appear astonishing. But the truth seems to be that Savigny’s dislike to the codification is not the effect of his own arguments, or of any arguments, but of a natural antipathy to the French (who were long hated in Germany because they behaved infamously there), transferred by a natural association from the French to their code, and from the French code to all codes. There is no more striking example how rash it is to argue from a man’s absurdity on one occasion to prove his general incapacity. Savigny’s argument, even as against codification in Germany itself is null. It rests on the assumption that men competent to the task cannot be found: but this he only assumes, not proves; and it is inconsistent with his own admission of the desirableness of a code, provided it do not attempt to include future cases: but to make such a code as he is willing to admit, would be nearly as difficult as to make that which he rejects. Further, he himself proposed that a complete and systematic exposition of German law should be executed by the jurisconsults of Germany; and anticipates great advantage from this work, if entrusted to competent hands. But the difficulty of systematically expounding the law is evidently equal to the difficulty of codifying it. A code is merely an exposition sanctioned by the supreme legislator and by his will converted into law.

Before I quit the subject of codification, I shall just remark that one advantage not generally adverted to would flow from it: an improvement in the character of the legal profession. If the law were more simple and scientific, minds of a higher order would enter into the profession, and men in independent circumstances would embrace it, who are now deterred by its disgusting character; for disgusting it really is. What man of literary education and cultivated intellect can bear the absurdity of the books of practice, for example: and many other parts of 681the law? Nothing but a strong necessity, or a strong determination to get at the rationale of law through the crust which covers it, could carry any such person through the labour. But if the law were properly codified, such minds would study it; and we might then look for incomparably better legislation, and a better administration of justice, than now. The profession would not be merely venal and fee-gathering as at present, but, as in ancient Rome, would be the road to honours and political importance. Much, no doubt, of the drudgery of the profession would still be performed by persons aiming only at pecuniary reward, but the morality prevailing in the entire profession would be set, in a great degree, by this high part of it, which would also comprise the practical legislators of the community. This would be a highly important consequence of the simplification of the law: for I am fully convinced that only from enlightened and experienced lawyers is any substantial improvement of the law ever to be hoped for.

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