1092 

CODIFICATION AND LAW REFORM.

Probability of some attempts at Codification.

Owing to the growing bulk and intricacy of the English Law (a bulk and intricacy which must go on increasing) it is most probable, nay it is almost certain, that, before many years shall have elapsed, attempts will be made to systematise it, to simplify its structure, to reduce its bulk, and so to render it more accessible. Partially, such attempts have already been made, and are actually in project. And owing to the rapidity with which the accumulation of law goes on, to the incompatibility of many of its provisions with the changed circumstances of society, and to the turn for legal reform which public opinion is taking, it is most probable, nay it is almost certain, that the necessity for such changes will in a few years be felt or imagined, and that such changes will be attempted, skilfully or unskilfully. Of the expediency or inexpediency of such changes I presume not to give an opinion. I merely affirm that changes of the sort are in progress, and that greater changes of the same sort are to be hoped or feared.

Now, whether such changes shall increase or diminish the evil, will depend upon the quality and the degree of the skill which shall be brought to the task. It will depend upon the number of competent workmen who can be brought to it. I shall therefore attempt to shew what are the attainments requisite for such an undertaking.

Re-construction must be accomplished, if at all, by scientific Lawyers.

First: with reference to the technical process of reconstructing the law, so as to reduce its bulk and to simplify its mechanism, it is clear that none but lawyers can be competent to it; that none but lawyers intimately acquainted with the system to be operated upon, can ever produce it with effect.

But a mere acquaintance with the actual detail of the system, however extensive and accurate, will not suffice. It is necessary that those who are called to the task should possess that mastery of the system considered as an organic whole, which is the distinguishing characteristic of the consummate lawyer. It is pre-eminently necessary that they should possess clear and precise and ever-present conceptions of the fundamental 1093principles and distinctions, and of the import of the leading expressions; That they should have constantly before their mind a map of the law as a whole; enabling it to subordinate the less general under the more general; to perceive the relations of the parts to one another; and thus to travel from general to particular and particular to general, and from a part to its relations to other parts, with readiness and ease: to subsume the particular under the general, and to analyse and translate the general into the particulars that it contains.

Nor can it be said that this talent is a mere idea. It has been possessed by the consummate lawyers of every age and nation. It was possessed by the Roman lawyers, and is indeed their pre-eminent, merit. Each seems to be possessed of the whole of, the science; each seems to be capable of applying its principles with equal justness and certainty. Insomuch that the Roman law, as formed by them, and as contained in the excerpts from the writings of which the Pandects constitute a part, though formed by the several labours of several men through a long series of ages, has all the coherence which commonly belongs to the work of one master mind.

It was possessed by Coke and Hale, between the former of whom and the Roman lawyers the resemblance is striking. Though a chaos in form, the coherence of his mastery of the rules is complete.

Without the talent which I have endeavoured to describe, every attempt to systematise the law must, in my opinion, be abortive, or, at least, will fall short of the intended mark. All depends upon firm intention; upon an accurate conception of the leading principles and distinctions, of the subordination of the detail under those leading principles, and of the relations of those leading principles to one another. If these be accurately conceived, the faults in detail are easily corrected. If these be conceived confusedly, the faults are incurable.⁶⁷

It is moreover requisite that a considerable number of men qualified as I have described should exist. For a Code cannot be the work of any one single mind. And if the work of several it would be incoherent, though wrought out on a consistent plan, if not wrought out by men, each master of the system as an organic whole, and capable of working it out in detail consecutively. With such men, codification would doubtless be not 1094only possible but expedient; as is admitted by Von Savigny and by others of its bitterest opponents. And that the existence of such a number is not impossible, is shewn by the Pandects.

The only men to originate and accomplish, or to guide and accomplish, legislative innovations, are enlightened practical lawyers; combining all that philosophy can yield, with all the indispensable supplements of philosophy which nothing but practice can impart. And this appears to be the meaning of Lord Bacon, though he mentions ‘viri civiles.’⁶⁸ With the practical conclusion which he deduces from the truth, I cannot agree. He seems to think that ‘viri civiles’ (meaning apparently public men, or practical politicians) are the only fit legislators. No men less fit. And it is evident that the talents and acquirements which he supposes in such men (and for which he supposes them eminently called to the ‘heroical work’ of legislation) are such as can only be found in enlightened practical lawyers: men who combine with an intimate knowledge of the existing system of law, a power and a liberal readiness to appreciate its merits and defects.

With regard to partial systematisation, it is still more necessary that it should be done by men thus qualified.

All attempts at Codification must be wrought out on one preconceived plan.

Unless projectors are insane, every process of Codification is wrought out on a preconceived and previously stated plan of the whole system to be wrought upon. Though, therefore, the workers are not qualified previously in the manner I have described, the authors of the plan itself have, by the preparation of it, disciplined themselves to the task in some degree. And those who execute the plan in detail have something of a guide in the plan itself. But in the case of bit-by-bit codification, the workmen have no plan before them of the whole law. And unless, by previous discipline, they have mastered the law to be operated upon as an organic whole, they are working on a part inextricably connected with the rest of the whole, without any perception of its relations to that unexplored, or at least undetermined, residue.

It seems to me that codification carried on in this manner 1095(and which, I know not why, has gotten to itself the honourable name of practical), is far more rash than any conceivable scheme of all-comprehensive codification; and is much more likely to engender the confusion which, it is commonly supposed, all-comprehensive codification must produce.

But the talents and knowledge requisite for such a task cannot be acquired by a merely empirical study of our own particular system, and by the mere habit of applying its rules to particular cases in the course of practice. It can only be acquired by scientific study; and the study which I am trying to commend is of all others the best, with a view to the acquirement of it.

The study of General Jurisprudence (as shewn above) has a tendency to form men qualified with the very talent which is most requisite for systematisation (or simplification), which is the great condition ‘sine qua non’ of codification; and the want of which (as is admitted by the ablest of the opponents of codification) is the great difficulty in the way of it. It tends to fix in the mind a map of the law, so that all its acquisitions made empirically in the course of practice, take their appropriate places in a well-conceived system; instead of forming a chaotic aggregate of several unconnected and merely arbitrary rules. It tends to produce the faculty of perceiving at a glance the dependencies of the parts of his system, which, as I have said, is the peculiar and striking characteristic of the great and consummate lawyer.

Undoubtedly, a sufficiently accurate knowledge of detail can only be acquired by practice founded on previous study. But there is a wide difference between the practical tact which suffices for the mere application of rules to practice, or for the discovery of rules applicable to the given case, and the adequate and clear perception of the legal system as a whole, and of the relations of its parts, which is necessary to the legislator; to him who is concerned, not with the mere application of ru1es, but with the reconstruction of such rules, their expression and arrangement, and with the numerous consequences with which any proposed innovation may be pregnant.

The very bulk of the system is an additional reason for a thoroughly systematic knowledge of it. Not only is an intimate acquaintance necessary with its rules as taken severally, but a perception of their relations to one another,—a map ever present to the mental eye, in which the dependencies of the parts, the apt place for every particular, and the consequence of the 1096alteration of any on any of the rest, may be traced with certainty.

Mere theorists are apt to stick in barren generalities, or to take no correct measure of what is practicable under existing circumstances. Mere practitioners (however able as such) are not capable of subordinating details to generalities and of perceiving the extent of such generalities; and, moreover, are incapable (from want of any standard of comparison) of appreciating the defects of their own system, and unwilling to amend them.

Theory and Practice are generally supposed to be incompatible. Though this is a gross error, there are doubtless some men to whom theory is more particularly useful; while there are others who, in the present state of opinion, would do well to avoid it. It may be feared that those who are not accustomed to abstract, may form hasty and ill-founded theories; and that those who have learned the principles of law in a general or abstract form, may only be perplexed by them when they come to the details of a positive system. Theory is a systematical statement of rules or propositions. Practice,—the application of any of these rules or propositions. Theory of what is, and theory of what ought to be, are perpetually confounded. Hence it is customary to oppose practice to all theory; because, in many cases, theories of what ought to be are erroneous; are not founded upon accurate observation; upon the accurate observations which the practitioner has the opportunity of making. Tidd’s work is as much a theory of what is, as anything that ever bore the name.

Legislation must be accomplished by Scientific Lawyers.

Secondly, in respect of Legislation.

Innovations on the substance of existing law, can only be accomplished by lawyers,—whoever may conceive and suggest them. For every innovation on substance imports an innovation on form, though changes in the form are not, of necessity, changes in the substance. In respect, therefore, of changes in substance, in so far as they import corresponding changes in form and mechanism, all that I have said about total or partial codification or simplification in the way of extirpation and substitution, is fully applicable.

With a view even to changes in substance, they ought to originate with lawyers intimately acquainted, with the system to be wrought upon. Or, though others may suggest them, they ought to be submitted to the judgment of such lawyers 1097before they are executed. None but they can determine how far such changes (though consonant to sound general principles of legislation) would accord with the actual circumstances in which the country is placed. Not to mention, that the end of many innovations is, in truth, often accomplished by existing law, or might be accomplished by some slight modification of it.⁶⁹

But in order that even lawyers may be fitted for guiding legislation, it is necessary that they should be lawyers who not only possess the indispensable requisite of familiar acquaintance with the actual system, and with the actual position of the country, but who also are acquainted with the science of legislation; therefore, with general jurisprudence (including comparative jurisprudence) as an integral portion of legislation; and with all those sciences (such as political economy) from which the science of legislation, considered as the science of law as it should be, is in great measure derived.

Without these studies, they cannot and will not appreciate impartially and justly, the merits and demerits of the existing law, the wants of the country, the expediency or inexpediency of proposed innovations. Without them, they will evince the ‘morosa morum retentio.’ They will not evince the candid readiness to admit the faults of the existing system, and to lend their aid to amend them, which is necessary to make them looked up to by the public as the guides of legislation: a position which, with this readiness (so indispensable to their guidance in all successful legislation), they infallibly would attain: a position most honourable to the profession, and lending a dignity to all its members: a position which, with a view to the public good, it is necessary they should attain. It is not in the power of the profession to prevent a change, but it is in their power to take the lead and to determine the course of the evitable movement: to discredit and crush (with the weight of influence founded on reason and public spirit) crude and mischievous innovations; to suggest useful innovations, and to carry useful innovations suggested by others into successful execution.

Sound legislative reforms (or sound innovations on the substance of the existing law) are not to be expected from the undisciplined sagacity of mere laymen: men who are neither acquainted, on the one hand, with the detail of the existing system, nor, on the other, with the general principles of law, with the science of legislation and with the sciences related to it: though suggestions from such men may be valuable. Nor 1098can they be expected either from men who have acquired by mere solitary study such general principles, or from lawyers, however extensively acquainted with their own system, who have not qualified themselves in the manner described.

As is well remarked by Lord Bacon with regard to these two last-mentioned classes of men, in the passage just referred to in the ‘De Augmentis,’ mere speculators on law, however good their general principles, have no adequate knowledge of the actual system, or of the circumstances modifying the application of such principles, and which must be duly appreciated before they can be applied in practice; whilst merely practical lawyers, though never so accurately acquainted with the actual system, and with modifying circumstances, are so fettered by prejudices in favour of existing institutions, that they will not and cannot perceive and admit the expediency and necessity for the changes, which inevitable changes in the conditions of society are forcing upon them.

Thus, it appears clearly from the history of the English Law that the Equity of the Chancellors sprang, chiefly, from the illiberal adherence of the Common Law Courts to the defects of the law which they administered and of the procedure by which they enforced it. If they had successively adjusted their law and procedure to the successive demands for innovation which time incessantly engendered, the extraordinary jurisdiction of the Chancellors would have had no plausible ground; and the necessary and eternal distinction between strict Law and Equity would probably have been unknown to the law of the English nation, as well as to most of the systems obtaining in other communities.

Some enterprising judges in modern times have endeavoured, with more or less of success, to get to their own tribunals matters which Chancery had engrossed: [E.g. Lord Mansfield, and even that stickler for things ancient, Lord Kenyon.⁷⁰] But whether it were expedient to alter in this patchwork manner, now that the arbitrary line has been drawn, may be questioned.

I conclude by summing up the considerations on which the question of Codification turns.

Résumé of the question of codification.

Such are the evils of judicial legislation, that 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 1099it, 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, or 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.

It follows from what I have premised, and will appear clearly from what I shall say hereafter, 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. 1100And that particular and practical question (as Herr von 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.