IBI RENASCIT JUS COMMUNE
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01263.x |
| Date | 01 March 1970 |
| Published date | 01 March 1970 |
IBI RENASCIT
JUS
COMMUNE
No
reader
of
the
Modern
Law
Review
can fail
to
have been
impressed by Professor Hahlo’s eloquent plea against codification
of the English common law, and
no
reader could fail to concur
in most
of
his principal points.
His
statement
of
the aims and
achievements of past codifications
is,
in the main, unchallengeable.
Who, as
Mr.
Commissioner Gower asksYa could deny that
it
is a
fallacy to suppose that codification can ever bring the law within
the comprehension of the
“
uninstructed layman
”?
Who could
deny that codes-like any other source of law-require inter-
pretation
?
Professor Hahlo himself cites Professor
F.
H.
Lawson’s
apposite and accurate dictum,
“
The adoption of a code is not
likely
to
do anyone any harm
.
. .
however a code is not a panacea.
One must not expect too much of
it.”3
No
one would quarrel
with this.
Professor HahIo’s thesis, however, seems to be that a code
will
do some harm: that codification is not worth the undoubted price
which has
to
be paid for
it.
For him at least, the grass
is
not
always greener
on
the other side. The object of this brief comment
is
to
attempt
to
answer two general questions which Professor
Hahlo poses and which Professor Gower, as a Law Commissioner,
concerned solely with_the
rationale
of the two Law Commissions’
projected Codes of Obligations, rightly did
not
find
it
necessary
to deal with. These two questions are
fmt,
why codify?; and
secondly, is the cost as high as Professor Hahlo would have
us
believe
?
One preliminary point must be made:
if
a case is
to
be
established for
or
against codification,
it
must be based
on
rational
and not
on
emotional grounds.
On
reading and re-reading Pro-
fessor Hahlo’s paper, the present writers have felt that basic
to
his approach
is
some sort of fundamental emotional attachment
to
“
the Common Law
”
itself. One is reminded of Sir Frederick
Pollock’s celebrated paean of praise for
“
our
Lady the Common
Law
”
and feels that Professor Hahlo is desperately anxious that
the
Virgo
remain
intacta.
If
codification is not
a
panacea, neither is
it
the sin against
the
Holy Ghost. Professor Hahlo concedes
‘
that
“
there are areas
of
the law which,, by universal consent, can be codified with advan-
tage,
and
which, in the interests of the administration of justice
1
(1967)
30
M.L.R.
941.
f
Ibid.
at
p.
259.
a
Ibid.
at
p.
268.
4
Ibid.
at
p.
243.
170
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