Here Lies the Common Law: Rest in Peace
| Date | 01 May 1967 |
| Published date | 01 May 1967 |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb02271.x |
THE
MODERN LAW REVIEW
Volume
30
May
1967
No.
3
HERE
LIES
THE
COMMON
LAW:
REST
IN
PEACE
6c
The law of England has long passed
beyond the range of any normally
operating machinery for rationalisation."
Sir
Maurice
Amos.1
"
Codification, presupposing infinite
R.
Floyd
Clarke.2
knowledge, is a dream."
1
CHARGED
with that most important of tasks, the
"
systematic
development and reform
"
of English law,
''
including in particular
the codification of such law, the elimination of anomalies, the repeal
of obsolete and unnecessary enactments and generally the simplifica-
tion and modernisation of the law," the Law Commission has set
to work with a will. One would have understood
it
if,
to start
with, at any rate, the Commission would have confined itself
to
a
programme
of
remedial legislation, designed to deal with the most
urgent matters: the reorganisation of the statute law; the reform
of
criminal and civil procedure
4;
and the elimination of the worst
inconsistencies and obscurities and the obviously obsolescent from
the common law. The First Annual Report
of
the Law Commission,
which has just been published,s shows, confwming the aims set out
in its &st programme,B that its ambitions extend further. Acting
1
''
Should We Codify the Law?
"
Political QuarterZy,
July 1933, at p. 366.
2
The Science
of
Law and Lawmaking
(New York, 1898), p. 45.
3
See the Law
Commission
Act 1965, and the note
by
Lord Chorley and
Mr.
Gerald
Dworkin
in
(1965)
28
M.L.R. 675.
4
There appears
to
be a widespread feeling among the legal profession
in
England that there
is
an urgent need for a thorough reform of the procedure
in
civil cases, not least
in
Chancery. See,
e.g.,
Alec Samuel8 (1966)
29
M.L.R. 352.
5
London, 1966.
6
S.O.
Code
No.
3946.
VOL.
30
241
9
242
THE
MODERN
LAW
REVIEW
VOL.
30
within the letter and spirit of its mandate, the Commission is taking
the law reform bull by the horns by embarking upon an extensive
scheme of codification. High
on
the list of its projects stands the
codification of the general part of the law of contract,
“
leaving the
rules which are special to particular types of contract (sale, hire-
purchase, agency and the like) until later.” The hope is expressed
that
“
these rules will later take their place in a Commercial Code
or,
ultimately,
in
a Code of Obligations.” Other projects
on
the
agenda are a code of the law of landlord and tenant
*
and an
“
up-
to-date and co-ordinated Code of Family Law.”
lo
There are branches of the private law which lend themselves to
codification as self-contained units, such as the law of matrimonial
causes and the law of matrimonial property rights. Others do not,
being part of the
“
seamless web.” Of this kind is the general part
of the law of contract, which is inextricably mixed up with the
law governing special contracts, torts and
‘‘
restitution.” By
tackling the
‘‘
truly enormous task
”
l1
of the codification of the law
of contract the Law Commission has nailed the flag of wholesale
codification of the private law and, possibly, the commercial law
as well, to its mast.
In
any case, once there are comprehensive
codes of the law of the family and the law of obligations, there is
not much of private law left. Though
a
consolidating Act and not
a code, the Law of Property Act 1925,12 could readily form the basis
of a codification of the law of real property.
At the turn of the century Maitland wrote that
‘‘
the century
that is opening may end in something very great, greater than the
French codes and the German; even in
an
accurate and artistic
statement of the English system, though in what quarter of the
globe we cannot guess.” These often-quoted words will now,
it seems, come true, and the quarter of the globe where the
common
law
will
be
codified
will
be, appropriately, the island where
it
was born and nurtured. The ghost of Jeremy Bentham should be
pleased.14
7
First Annual Report, para.
31,
p.
7.
8
Zbid.
9
Zbid.,
para.
67,
p.
13.
10
Ibid.,
para.
71,
p.
15.
11
Alec Samuel8
(1966)
29
M.L.R.
352.
12
15
&
16
Geo.
6,
c.
90.
18
Quoted
from
Rufus Carrollton Harris,
“
The Future
of
Codification
”
(1955)
29
Tulane
L.R.
at
p.
178.
14
Whether to codify or not to codify has long been a controversial subject in
Britain and America. As early a8
1593
Francis Bacon in a speech in
Parliament talked
of
the need of restating the laws of England (P. Stein.
Regulae
Juris,
p.
171).
Jeremy Bentham is generally regarded as the father
of
the idea
of
codification
of
the law
of
England (Holdsworth, Vol.
11,
p.
316).
Many eminent English jurists have taken up his plea-Austin, Sheldon Amos,
Sir James Stephen, Sir Frederick Pollock, Sir Maurice Amos and more
recently, Dennis Lloyd (Lord Lloyd of Hampstead, as he
now
is),
to
name
only a few. Among the opponents
of
codilkation
of
the common law, special
mention may be made of two American lawyers, to whose writings repeated
reference will be made later in this article, James
C.
Carter and
R.
Floyd
Clarke.
It
was
on
the basis of a memorandum prepared by James
C.
Carter,
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