CORRESPONDENCE
| Published date | 01 September 1967 |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb01164.x |
| Author | H. R. Hahlo |
| Date | 01 September 1967 |
CORRESPONDENCE
THE
EDITOR,
Modern
Law
Review.
Dear Sir,
My good friend Professor Gower has been kind enough to show me his
comments on my article,
“
Here Lies the Common Law
:
Rest
in
Peace.”
1
I
was glad (though not surprised) to find that there
is
so
much common ground
between
us.
In commenting on his comments
I
intend to contine myself to
one
or
two points on which
I
do not seem to have been su5ciently explicit
in my article.
Nothing could be further from my mind than to doubt the wisdom of
the decision of the Law Commission to codify the law of contract.
Nor
do
I
claim that the law
of
contract does not lend itself to codification. What
I
do believe is that, once embarked upon,
a
codification of the law of contract
is likely
to
become the
first
step in the codification of the whole of English
private and commercial law. Providing support for what
I
said in my article,
Professor Gower remarks that “one of the lessons already confirmed by
our
experience
is
that it is extraordinarily difficult to isolate any branch
of
the
law as
a
self-contained unit.”
It
is suggested that, while it is no doubt true
that every branch of the law is part of the “seamless web,” some branches
are more
so
than others. There is, as experience in all common law countries
has shown, no special difficulty in codifying, say, the law of insurance
or
of
negotiable instruments, without worrying about other branches of the law.
The law governing general principles of contract, on the other hand, is closely
intertwined with almost every other branch of the law. Once it has codified
the law of contract the Law Commission will feel itself sorely tempted, by the
logic inherent
in
the legal system, to carry on with codifying until the whole
of the civil and commercial law of England is covered.
Its
first Report does
not show any marked disinclination to yield to this temptation. My article
is based on the assumption that in the fullness of time the whole of English
law will be embodied in codes.
2.
The burden of my thesis is not that codification of English civil law
is unnecessary,
a
matter on which
I
would not feel myself competent to pro-
nounce. On the contrary,
I
concede that English law may have reached the
stage when codification becomes unavoidable, interstitial legislation having
ceased to be adequate. And it may well be that
as
a
result of codification
the common law will be reborn as
a
better system of law. What
I
am
inclined to doubt (perhaps wrongly) is whether the Law Commission fully
realises the magnitude of the effort involved in (a) drafting, (b) learning,
(c) periodically revising
a
new code.
As
all Continental countries have found
out, codification alters not only the form of
a
legal system (that is obvious),
but its whole character. Unlike
a
statute, which is superimposed on the
commm law, and
a
restatement, which is merely a glorified textbook setting
out the common law,
a
code means
a
break in tradition, requiring new tech-
niques of application and interpretation. Professor Gower
concedes that
“a
code needs to be kept under constant review and revised
from time to time-that is one of the things that the Law Commission
is
intended
to
do.” But not only is revision an ever-recurring nightmare in
a
codified system of law, it replaces the smooth, evolutionary changes charac-
teristic of
a
non-codified system by
a
sequence of changes in jumps. This
is
well brought out by Professor Fritz Kern,
a
civilian by background and
training, when he says2:
1
(1967)
30
M.L.R.
241.
2
Kingship
and
Law
in
the Middle Ages,
translated from the
German
by
S.
B.
607
1.
The matter of code revision may serve as an example.
Chrimes, Oxford,
1939,
p.
179.
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