CODIFYING THE COMMON LAW: PROTRACTED GESTATION
| Published date | 01 January 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01398.x |
| Author | H. R. Hahlo |
| Date | 01 January 1975 |
CODIFYING
THE
COMMON
LAW:
PROTRACIED
GESTATION
‘‘
It shall be the duty
of
each of the [Law] Commissions to
take and keep under review all the law with which they are
respectively concerned with a view to its systematic
development and reform, including in particular the
codification of such law.
.
.
.”
IN
an article of mine, entitled
“
Here Lies the Common Law: Rest in
Peace,” published in the
1967
Modern
Law
Review,’
I
queried the
merits of codification which was
so
prominently stressed as one
of
the
objectives of the two Law Commissions. The burden
of
my argument
was that the supposed advantages of codification-certainty, clarity,
accessibility to the layman-are usually over-estimated, while the
price which has to be paid
for
them is usually underestimated.
I
also
made the rather obvious point that, since substance and form go
closely together
in
law, it would be naive to think that the common
law could be codified without undergoing a seachange. (This,
needless to say, does not mean that it would become
a
civilian
system).
In
my article as well as in a subsequent “Letter to the
Editor,” in which
I
replied to certain comments made
on
my article
by my good friend
L.
C.
B.
Gower;
I
made it clear that my remarks
were intended to apply only to an all-embracing codification
of
the
common law
on
Continental lines, and not to law reform by remedial
legislation, which will obviously always be necessary.
In
1970,
three years after the publication of my article, Mr. M.
R.
Topping
of
the University of Edinburgh, and
Mr.
J.
P.
M.
Vanderlinden
of
the University
of
Brussels, mounted an all-out
attack on it in the Modern
Law
Review under the title
“
Ibi Renascit
Jus Commune.”
On several points Messrs. Topping and Vanderlinden and
I
see eye
to eye. We are agreed that one of the things codification cannot do, or
7
Law Commissions Act
1965
(c.
22).
s.
3
(1).
2
(1967)
30
M.L.R.
241.
8
Of
course if, as happened in California according
to
Professor Grant
E.
Giimore
of
Chicago, the English-courts were
to
adopt
*‘
as
a
uniform rule of interpretation,
the principle that everything in the Codes should be construe!, to be in complete
uniformity with the doctrines and rules of the common law
(Aspects
of
Com-
parative Commercial
Low,
1969,
eds. Ziegel and Foster.
at
451).
the sting
would
be taken out
of
codiflcation, but then, why codify at all? Moreover, this is clearly
not the sort
of
codiflcation the Legislature envisaged when it passed the Law
Commissions Act.
_.
4
(1967)
30
M.L.R.
607.
5
(1967)
30 M.L.R.
259.
6
(1970)
33
M.L.R.
170.
If
it were not fairly clear from their article that my
“Letter
to
the Editor” had escaped the vigilance
of
Messrs. Topping and Vander-
linden, one might think that the title
of
their reply was inspired by my
“
Letter
to
the Editor
”
(supra)
where
I
conceded, though not without doubts in
xny
heart,
that it might well be that as a result
of
codiflcation the common law would be reborn
as a better system
o
law.”
23
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