1021 

NOTES ON CODIFICATION.

It was not my intention to publish the following Notes on Codification, nor the notes on Criminal Law by which they are succeeded. They are, as the reader will perceive, mere memoranda, and appeared to me too incomplete and fragmentary to be submitted to the public eye.

But the earnest representations of more qualified and more impartial judges, as to the substantial value of these hints, have induced me to lay aside my scruples.

I have been reminded also by members of his profession, that the publication of these Notes is now peculiarly called for; and that even these slight indications of Mr. Austin’s opinions will be received with interest and respect by all who are labouring in the difficult field which he explored. Though nothing can be further from my thoughts than to seek in the circumstances of the times a factitious and transient popularity for anything written by him, I believe I have no right to withhold even these imperfect contributions to the advancement of the great work which he had so much at heart.

The original MS. Consists of two sets or packets of Notes, one of which is written in pencil. The repetitions have been omitted, and the whole arranged under the heads marked by the author. No other alteration in their form has been attempted.

Frequent reference is made to Lecture XXXIX., Vol. II., in which the subject of Codification is touched upon.—S. A.

By the fortunate recovery of the latter part of Lecture XXXIX., as printed in this edition from J. S. M.’s notes, much of the ground covered by the following notes is anticipated. As the following notes, however, were printed from the author’s own MS., I have thought it beat to reprint them here without alteration.—R. C.

The question of the expediency and practicability of Codification is double: general or abstract, and particular or concrete.

Considered in abstract, the question will not admit of a doubt. As a practical question, it is particular, and may admit of a doubt.

Objections, however, have been urged which apply to Codification generally. These I shall endeavour to answer, and 1022shall afterwards advert to the particular objections to codification in England; the difficulties to be surmounted, and the course which, in my opinion, ought to be pursued.

All law is statute or judiciary. Consequently all codification (of existing law) is resolvable into two parts:

1°. A re-expression and arrangement of statute law:

2°. An extraction from cases of rationes decidendi, and the stating them as general rules and arranging them:

3°. A conflation of both.

[Sorts of law in posse, authoritative treatises, etc., must be codified also, if really having the effect of law. The characteristic differences of statute and judiciary law lie (as I have shewn in my Lectures),²⁵ mainly in the form in which they are respectively expressed.

The interpretation of statute law and the peculiar process of abstraction and induction will be treated of hereafter.]

Admitting that codification is expedient as considered generally or in abstract, it follows not that it would be expedient here or there.

Dismissing the expediency of codification in particular with a brief indication of the considerations on which it turns, I shall confine myself to codification generally.

Order of treating the general question of Codification.

In considering codification in abstract, I shall consider,

First, its practicability:

Secondly, its expediency:

Thirdly, the objections (or the leading objections) which have been advanced against it.

The arguments to prove its practicability and its expediency, lie in a narrow compass; although, in my opinion, they are perfectly conclusive.

The demonstration of the nothingness of the objections occupies a considerable space.

The objections which I shall consider, go to codification generally; although the objectors commonly advance them with reference to codification here or there.

1023Practicability (and Advantages) of Codification (considered generally).

It is possible to extract from particular decisions, rationes decidendi; and leading principles and decisions. These, if stated in abstract (and exemplified) would be clearer than when lying in concrete: And would also be more general, abstract, and adequate, being so expressed as to apply to all cases falling under them, and not limited to the cases (with their accidents) by which they were established.

The induction (previous to the application) of the ratio decidendi of a decided case, is Codification pro tanto.

The practicability of codifying the statute law will not admit of a doubt. If it be practicable to establish general rules (in an abstract form) one by one and without system, it is practicable to establish a system of such rules. The consolidation of the statute law is an admission of this pro tanto; and nothing can be more inconsistent than the objections raised to codification by the friends of consolidation. For they object to the former, the impossibility of viewing completely the field of law.

Practicability (with difficulty) of Codification.

Practicability of codification:

With reference to such part of the law to be codified as is statute;

To such as is judiciary.

Its difficulty.

Difficulty of rendering it complete; of rendering it consistent, and of duly subordinating the less general under the more general:

Of extracting definitions and principles from judiciary law.

Great evil done to the cause of codification by representing it as easy.

Expediency of Codification.

The expediency of codification follows from a notion of the Law; from a statement of the respective natures of statute and judiciary law; and from the bulk and uncognoscibility of unsystematised law.

It is better to have a law expressed in generals, systematic, 1024compact and accessible, than one which lies dispersedly, buried in a heap of particulars, bulky and inaccessible.

Its expediency is admitted practically by treatises, redactions, etc.; many of which are, in effect, codes: those who talk loudest against redactions, availing themselves of them in practice. But redactions by private hands are not equivalent to codes.

The expediency of codification (in a particular case) must depend on a variety of considerations: especially on the quantity and degree of skill which it may be possible to bring to the enterprise.

The great difficulty is, the impossibility that any one man should perform the whole. But if done by several, it would be incoherent, unless all were imbued with the same principles, and all versed in the power of applying them. The great difficulty, therefore, is to get a sufficient number of competent men versed in common studies and modes of reasoning. This being given, codification is practicable and expedient.

Peculiarly technical and partial knowledge of English lawyers.

No English lawyer is master even of English law, and has, therefore, no notion of that inter-dependency of parts of a system on which successful codification must depend.

A code must be the work of many minds.²⁶ The project must be the work of one: and revised by a commission. The general outline, the work of one, might be filled up by divers.

All-importance in codification of the first intention. Till minds are trained, it will hardly succeed. How the difficulty is to be surmounted. Necessity for men versed in theory, and equally versed in practice;²⁷ or rather, of a combination of theorists and practitioners. Necessity for preliminary digests; or for waiting till successful jurists and jurisprudence are formed through effectual legal education.

Evil done to the cause by exaggerating the extent to which law may be made accessible to the laity.

1025How far, and how, law may be made knowable to the bulk of the community.²⁸

If law were more cognoscible (in respect of its principles and ends) to the bulk of the public, the public would call more discriminately, as well as more decidedly, for legal reforms: would support good innovations and scout bad projects of ignorant quacks.

Effect of Codification on the Character of the Legal Profession.

Law may be made accessible (in its whole extent) to lawyers.

Advantages that would thence ensue: by discharging law of mere rubbish, and simplifying it; and so leaving more leisure for the study of law itself and its rationale; and so inviting minds of a higher order into the profession:

By shewing the subordination of detail to principles, and relations of parts to one another; and so rendering the rationale of law manifest, and law a rational and interesting study:

By making lawyers complete masters of the body of law, and so rendering good advice cheaper and more accessible; and making local judicature practicable.

Without local judicature, preliminary examination of parties, etc., good administration of justice is impossible.

But the possibility of local judicature, etc., depends in part on substantive law.

With a local bar, there could not be the same division of labour as at present: therefore each man must be a complete lawyer; and that he may be, the bulk and complexity of law must decrease.

Floating jurisprudence must be reduced to the least possible quantity.

Such a reform in the law as is here contemplated would improve the character of the legal profession. Through improvement of their character, would lead to still further advances in legislation, and, generally, in ethics.

Through the improvement of the legal profession, chicane would be less frequent. The morality of the bar and of attorneys would improve. From compactness, simplicity and cognoscibility, mistakes in conveyances, contracts, etc., and, generally, in extra-judicial conduct, would be less probable and frequent.

1026Codification of existing law, and innovation upon the substance of existing law, are perfectly distinct; although a code may happen to be wholly or partially new in matter as well as in form.

The codification now contemplated is merely a re-expression of existing law: the reduction of judiciary into statute, and the arrangement of both into apt divisions and sub-divisions.

[This must, however, be understood with some limitations. In order to attain the simplicity which is the end of codification, it may be expedient to abrogate certain inconsiderable rights. E.g. In order to get rid of tenures, you must destroy the reverter to the mesne lord, making compensation.]

A code, as meaning a body of law expressed in general formulæ arranged systematically, and complete, is a modern idea.

The term ‘Code,’ as expressing such a body of law, and the term ‘Codification,’ as meaning the reduction of an existing body of law into such a code, are not expressive.

Expediency of beginning with a Digest.²⁹

No harm done, though imperfect.

If arranged, as nearly as might be, according to the future code, it would be a preparative, and, if well done, a proof of practicability.

It would form a school.

The difficulty (perhaps an insurmountable one) would lie in the plan. The plan being formed by one, and revised and extended by a commission, unity in detail might be preserved by the superintendence of such commission,³⁰ as well as by the fact of separate authors working upon a common plan. Several plans might be presented to the commission.

It would less alarm the profession and give notice to them of an impending code.

Necessity of conciliating lawyers, and injustice of certain attacks upon them.

A Digest ought to be a conflation of statute and judiciary law, arranged in relation to subjects (and without relation to different systems of equity, etc.). This would rouse men’s attention to the vast quantity of equivalent and passive rules, 1027and would suggest the possibility of the conflation of Law, Equity, etc.

Whether Common Law and Equity, etc., ought to be kept distinct.

There might be two distinct Digests, one a statement of law according to subjects, the other of law according to jurisdiction. A Digest would serve as a guide to a future code; and to partial legislation in interim.

It would be a better index to existing law than at present exists; and a better institutional book. [The latter is indeed partly the purpose of Digests.]

A Digest cannot be supplied by separate and unauthorised hands; for no proportions would be observed in the parts, nor would the parts (not being constructed on a common plan) obviously, or even really, harmonise.

The length of such a Digest would be of no great moment: because abstracts and tabular views would serve as guides.

For the use of students, a systematic Digest ought to be accompanied by an historical one. An historico-dogmatical would not be convenient for reference.

In the historical Digest, the divisions would be the same as in the systematical, and Law on each head would be brought down to the system. It should not be a merely external, but an internal digest; an exposition of different doctrines.

For the use of students, Institutes ought to be compiled: being not merely abstracts of the Digests, but containing expositions of the principles of general jurisprudence, etc.

The historical Institute might in this respect be rendered extremely instructive:

E.g. By giving comparative views, historical and dogmatical, of English and Roman law.

A Digest should be, perhaps, composed in the manner of an analytic and demonstrative treatise: i.e. the rules and principles should be extracted from the statutes and decisions; and that such are the rules and principles which the statutes and decisions establish, should be shewn by examination and reasoning (where necessary).

This would lead to length; but that objection is answered already.

1028It would be the business of the general commission to abridge needless argumentation.

A mere extract of rules and principles (not in the words of the original authorities) would not inspire confidence: would be the proper form of a code intended to supersede existing law.

Mere extracts of generalities from authorities would be liable to the objections made above, as lying against Codes and Digests.

The general rules and principles should be carefully detached from the inductions, so as to shew the law in general terms, and prepare the way for a code.

Necessity for a standing Law Commission to supervise legislation, and work new laws into the Code:

To be aided by suggestions from judges and other practical lawyers: thus combining due deliberation and comprehensiveness with knowledge of actual exigencies.

Also, by suggestions from theorists.

The evils in the mode of making Statute Law mentioned by Park³¹ are imaginary.

It is impossible to prevent the growth of judiciary law; but it may be kept within narrow limits.

The decisions of the Court on the Code would not be more uncertain than other decisions.

Immense superiority of judiciary law formed on a systematic whole, to law of the same kind formed on an undigested chaos.

It would itself be no more than an interpretation of, and complement to, the code.

The projected code might be extended to Ireland, Scotland, etc.: codifying, in each instance, the particular or local law, which would be applicable in preference to the code. This was done in Prussia. Codification ought to be universal.

Objections to Codification considered generally.

Objⁿ. 1°. That a code is necessarily incomplete; and cannot provide for all future cases.

Supposition that judiciary law provides for cases in specie, and therefore is not finitum (see Pandects, ignorantia juris) and knowable. Counter-supposition by Park.

1029[Savigny’s triangle is not a deduction of unknown from known, but a mere subsumption of individual under general, or of less under more general.]³²

Answer.—Though it is not possible, by a Code (or any law) to provide for all future cases, a Code is less likely to be very defective than judiciary law; which is necessarily timid and inadequate.

And, at all events, existing law, by a Code, is given pure from particulars; whilst the comparatively small body of judiciary law formed upon it is formed on a compact and perspicuous whole, and may easily be wrought into it.

2°. That every case is decided by the joint application of several rules.

Answer.—But this applies to judiciary as to all law; no judicial decision being applicable to a concrete case. As put by Portalis, the objection shews that law is impossible. And in the case of well-made statute law, the rule is given: nothing but the labour of applying it remaining.

3°. That a Code is unalterable (or, at least, less malleable than a body of law formed by aggregation). Hence, a Code, if made in an incompetent age, saddles a more competent posterity with its own vices. And, hence, codified law does not adapt itself to the successive wants of successive ages so easily as law made bit-wise: it will perpetuate the defective ideas of that age, and retard the progress of society.

Answer.—The reverse is the truth, on account of the natural tendency of judicial legislators to legislate by analogy; and so to perpetuate the ideas of past ages, so far as is consistent with inevitable change.

4° Superior malleability of Common Law.

Answer.—This supposes, if true, uncertainty, from perpetual alteration. Park makes the same objection to judiciary law. It is not inherent in any law.

The historical School of Jurisprudence, so far as they are right, concur with everybody. Their peculiar views of the value of history, exclusive of philosophy, are wrong.³³

Law (as it ought to be) is not deducible from principles knowable à priori, but from principles which must be obtained (through induction) from experience. No experience of actual institutions, independently of the principles which are obtained by experience of Human Nature, can be of any value.

5°. A Code is more liable to engender competitions of opposite analogies, than a body of law consisting of judiciary rules, or of judiciary rules patched with occasional statutes.

Answer.—But, as has been shewn,³⁶ the competition (incident to the application of law) is merely a consequence of the inconsistency of rules: an inconsistency arising commonly from their indefiniteness.

The argument, therefore, is no substantive objection to codification, but is merely another argument (namely, that a code is necessarily less definite than a body of judiciary rules) put in another form.

The very question, or at least the main question, between the advocates and enemies of codes is this; whether a code or a body of uncodified law be essentially most productive of a competition of opposite analogies: i.e. be essentially least definite, and generally least coherent.

[Explain what is meant by ‘competition of opposite analogies.’ See p. 632, ante.]

10316°. Tendency of codification to disturb rights and duties created by codified (and anterior) law.

7°. That no determinate leading principles will be followed consistently by makers of the Code, and the provisions of the Code will therefore be defective and incoherent.

Answer.—This is only true of incompetent makers.

Objectors to Codes sometimes suppose that a Code must consist of insulated and incoherent propositions. E contra, one of its chief merits would be an exhibition of dependencies.

If formed by induction and extraction from an existing system of law, it would possess the internal organic consistency attributed to law growing by aggregation; and would render that consistency more visible, by detaching the rules from the concrete matter, and arranging them systematically.

8°. That private expositions of the law by competent hands serve all the purposes which codifiers aim at.

That in an age having such hands, and therefore alone capable of successful codification, codification is therefore needless.

That, accordingly, no demand was made for a Code during the time of the classical jurists.

9°. That a code will not be fitted to the custom, prejudices, wants, etc., of the community; nor to experience.

It will not, like judiciary law, be a mere expression of anterior custom.

Answer.—This, besides being false, is applicable to all law, save judiciary, and statute law founded on custom.

10°. That the defects of a Code being more obvious than those of uncodified law, a Code would give greater opportunities for chicane.

For answer, see Lecture XXXIX.³⁷

Further answer: The argument is suicidal; for, if defects are more obvious, a Code must be more simple, compact, and intelligible, than an uncodifled system.

Defects therefore were more curable, and also more evitable till cured.

11°. If the Code could be constructed with ease, it would be contemptible:

Difficulty is good, because the labour of surmounting it is laudable.

Answer.—Unhappily, an easy, and therefore little-worthy-of-praise, Code is not practicable.

103212°. Its effect in annulling and disturbing existing rights and duties.

Answer.—This has little application to a codification of existing rules.

It has, however, some: because the forms of existing rules would be modified (or the Code would be of no use) and the equivalence of rules in a new guise to rules in the old, might often be doubtful.

Old rules would remain in force with regard to rights and duties which had grown up under them.

13°. A Code (in order to approach to completeness) must consist of rules so minute and numerous that no man could learn or retain them.

Impossibility of providing completely for future particular cases:

Bulk and complexity which would result from the attempt to provide for them.

Answer.—Codification ought not to be a specification of cases, but a series of rules applicable to cases.

14°. Objection by Park, from the alleged infinitude of rules.

Answer.—If this were true, law would be impossible.

Perhaps he means that the future exigencies requiring new laws, and consequently the new law required, are infinite.

But who ever imagined the possibility of constructing a code which should provide completely for all future times?

But it were more possible to provide for future cases by a code than by judiciary law. Prætorian law is praised by the Digests for this very reason. Inconsistency of Hugo and others in this respect.³⁸

By Park the objection is thus answered:—

According to this, existing law has nearly provided for all possible cases: and whatever of uncertainty exists, arises, not from the incompleteness of the law, but from ignorance by lawyers of its provisions.

Consequently a reduction of this law to a compact, system1033atic, and more accessible form, would remove the present ground of uncertainty, by rendering the law more generally known by lawyers.

But, in truth, his assertion is false, and contradicted by himself elsewhere.³⁹

A Code or systematic exposition (if well made) would possess all the advantages pointed out by Savigny,⁴⁰ and would therefore tend to make lawyers better lawyers than now.

It would shew the subordination of the detail to the leading principles, and the relations of these principles and detail to one another:⁴¹ would render the rationale manifest, and positive law interesting.

In a code or statute (if well made) the law is given. In judiciary law, not.

The difficulty of applying the same, whether law is statute or judiciary.

A case often (or always) consists of various parts, and cannot be decided by any one single rule.

But this is just as applicable, whether law be statute or judiciary.

The objection seems to suppose (contrary to the objector’s own assumptions) that precedents are exactly in point, instead of merely furnishing rules.

The difficulty really consists in determining the rule (if any) within which a given case falls, or whether it falls or not within a given rule; and in conceiving distinctly the case, the law, and the relation of the case to the law.

But this proves merely that lawyers should know the law, should be capable of clear apprehension, and be good logicians.

Assuming a code well made, their knowledge of the law would be more perfect. The law would then be (as it was to the Roman Lawyers and Lord Coke) completely present to their minds, and suggested by a particular case.

Objections derived from the defects, errors, and alleged ill-success of actual Codes.

Admitting the defects, errors, and (to some extent) ill-success of such Codes:

1034Such defects, errors, and ill-success prove nothing against codification generally; or against codification in any particular country (including countries in which the codes in question were compiled and have obtained as law); unless such defects and errors, with the other causes of the ill-success, were necessary, and not accidental and avoidable.

Accidental and avoidable causes have rendered the French and Prussian codes unsuccessful to a considerable extent; though, after all, the failure of these codes has been much exaggerated.

Brief review of Justinian’s Compilations, and of the French and Prussian Codes, for the purpose of shewing that the defects, errors, and ill-success of those particular compilations were owing to causes not necessary.

Justinian’s Compilations.

In Justinian’s Code; statutes and decrees are mixed up; nay, privilegia are mixed up and confounded with rules and principles made for general application.⁴²

The compilers had some notion of the necessity of defining terms and principles in order to cut off all reference to anterior law.

As a further means of attaining this end, they left in much historical matter.

The Code and Pandects form properly the intended body of law; a body intended to be complete.

The Institutes (a book for the use of students, though also law), were derogating from the Code and Pandects, or supplemental to them.

The Novels are mere correctives of previous compilations.

Much of the Code and Pandects consists of judiciary law; and of judiciary law detached from particulars necessary to make them intelligible.

These compilations, therefore, are not a Code, sensu hodierno. They are a body or heap (without scientific arrangement) of statute and judiciary law: the latter so given that it must be gathered by guess from mangled documents.

It is remarkable that the compilers felt the necessity of definitions and expositions, omitted by the French redactors.

1035Their (imperfect) contrivances to render a resort to the old law needless.

French Code.

The French Code contains no definitions of technical terms (even the most leading); no exposition of the rationale of distinctions (even the most leading); no exposition of the broad principles and rules to which the narrower provisions expressed in the code are subordinate.

Hence its fallacious brevity.

Brevity is of no importance except as it tends to perspicuity and accessibility.

In consequence of the want of such definitions, etc. (and of purposed incompleteness hereinafter mentioned) old law (or a body of jurisprudence formed upon old law) has been appended to the code.

Inattention to a due settling of those all-pervading principles and main partitions or distinctions, upon a precise conception of which, consistency in execution of detail depends.

Success in codification (as I shall observe hereafter) must mainly depend on first intention: on aptness of plan.

Haste with which the Projet was compiled. Faults arising from ignorance and haste could not be corrected by the Council of State, who were more ignorant still; and who merely examined, bit by bit, articles of the projet, instead of examining the projet as a whole.

Original conception as to matter and arrangement, defective: a defect not to be cured by discussions on the plan conceived.

Ignorance and incapacity of the compilers; Ignorance of, combined with servile respect for, Roman law—the main basis of the code. They knew little besides the Institutes, and have, therefore, blindly followed them, with all their lacunæ. They were ignorant of the most fundamental distinctions (e.g. dominium and obligatio). This last is a proof of their carelessness, as well as incapacity. No care has been had to amend the code, or to work in subsequent decisions and statutes.

Separation of the Code de Commerce from the Code Civil, and general misapprehension of the nature of the distinction between jus personarum et rerum.

1036It was not the purpose of the compilers to form a complete Code.

Bad as is the French Code, slight alterations in the text would supersede the interpretative decisions.

Structure of the Prussian Code.

It is not loaded with precedents, but with declaratory laws, provoked by particular cases. Such laws differ from the judicial decisions of the Court of Cassation.

Consequent necessity for letting in the old Gemeines Recht to explain it.

No care has been had to work the Novels into the code.

The Prussian Code was not intended to be a complete body of law, but merely a digest of the common and subsidiary law where local law obtained.

The præjudicia are of no authority.

There are no adequate definitions or expositions of leading terms and principles.

Subsequent legislation is not wrought into the code.

The applicable Gemeines Recht consisted for the most part of Roman and Canon law.

Notwithstanding these acknowledged defects, all practical men in Germany are codifiers.

Reasons for the hostility of a portion of the professors in the Universities.⁴³

Conclusions from the Review of Codes.

First; That their defects, errors, and partial ill-success were not the results of necessary causes.

Second; That in spite of such errors, etc., those codes are better than the body of law that they superseded.

1037Conclusions as to Savigny’s Arguments founded on such defects, etc.

Great respect is due to the opinions of Herr von Savigny, which no man feels more strongly than myself.

All the objections which I have noted and answered above are advanced by him.

His book is directed against codification in a particular country, and even against a particular scheme of codification for that particular country; but., nevertheless, many or most of his arguments apply to codification generally.

The objections peculiar to him are these:—

1. That in an age capable of producing a good code, a code were needless, the want being supplied by private expositors.

2. He asserts that during the ages of the classical jurists (who, he admits, were competent to the task), no want of a code was felt.

3. That a code makes the defects of law more obvious, and therefore emboldens knaves.

4. That if a code were easily to be constructed it would be good for nothing.

To this I answer, that codes have no tendency to simplify the science of jurisprudence, or to abridge the studies of lawyers. They have a tendency to discharge it of rubbish.

The study of cases (as exemplars for the difficult art of applying rules) would still be necessary to lawyers, though a code were introduced.

He assumes that no determinate leading principles will be followed consistently by the compilers of a code.

He is not however opposed absolutely to all codification.

He is an advocate for a code which should include all but future cases; and he has proposed a digest. He has himself suggested an important argument to shew that the main difficulty in the way of codification is not insurmountable. But he would wait (for improvement) till better jurisprudence and jurists are formed.

His proposal of a digest is inconsistent with his main reason to shew the inexpediency of codification in Germany.

His opposition to Codes is the effect of gelehrter prejudice in favour of Roman law, and of national antipathy.

Nullity of his Treatise as an argument against codification generally, and even as an argument against it in Germany, the proper and special object of his attack.