Taking Civil Codes Less Seriously

Date01 January 1987
AuthorHein Kötz
Publication Date01 January 1987
DOIhttp://doi.org/10.1111/j.1468-2230.1987.tb02557.x
THE
MODERN
LAW
REVIEW
~~ ~
Volume
50
January
1987
No.
1
TAKING CIVIL CODES LESS SERIOUSLY
WHEN
it
was announced that I would have the honour and pleasure
of
giving this lecture a quick look at the formidable list of my
predecessors showed that you have only rarely taken the risk
of
inviting a foreign lawyer. This was undoubtedly wise. Not only is a
foreign lawyer who ventures into English law bound sooner
or
later to fall into error, but he will expect you to forgive him and
kindly put him right when he does
so.
Not only is he apt to rush in
where local angels fear to tread, but courtesy may require you to
call his views original and refreshing when they are heretical or
bizarre. Sure to blunder though
I
am,
1
think
I
cannot go too far
astray
if
I start with a
text
by Lord Wilberforce. In a speech he
made during the debate on the bill that was to become the Law
Commissions Act he said:
“By presenting to the courts legislation drafted in a simple way
by definition
of
rinciples, we may restore to the judges what
they may have
P
ost for many ears to their great regret; the
task
of
interpreting law accorc6n
the Common Law rat
\
er than militate against it.”’
rather than by painfully
of
detailed and intricate
of
codification, intelli ently carried out, will revive the spirit
of
Charged
“to
take and keep under review all the law
.
.
.
with a
view to its systematic development and reform”-rather a daunting
task-the Law Commission nailed the flag
of
codification
to
the
mast and set a straight course, or
so
it seemed,
to
a law where
everything, in Baudelaire’s words, is
“ordre
et
beaute‘, luxe, calme
et
vofupte‘.”
Eight years later, Lord Gardiner, who had blessed the
ship at launching, asked Her Majesty’s Government about its
present position. Lord Hailsham, then Lord Chancellor, had to
admit that her speed had slowed down considerably,2 and in
1980,
her captain, Sir Michael Kerr, the immediate past chairman
of
the
Law Commission, finally, though
I
think without much regret,
pronounced her a total loss. The Law Commission, he said, is
to
I
H.L.Deb.,
Vol.
264,
cols.
1175-1176 (April
1,
1965).
See Hahlo, “Codifying
the
Common Law: Protracted Gestation” (1975)
38
M.L.R.
23,
26.
1
2
THE
MODERN LAW
REVIEW
[Vol.
50
continue work on interstitial legislation on selected topics of the
law where reform appears particularly desirable. Rut codification
of
the law of contract and of landlord and tenant had in his view
“no prospect of realisation” and “may well be unattainable in this
co~ntry.”~
It is probably safe to say, therefore, that codification is a dead
issue in England today, and as there seem to be few mourners
around
I
do not intend to offer my condolences or attempt a
resuscitation. But it is worth noting that epitaphs have been written
by various members of the English and Scottish Law Commissions,
perhaps
to
get rid
of
a guilt complex. They give reasons for the
demise
of
the codification
project^.^
On some of those reasons
I
have little to say. It was argued, for example, that even if a draft
code were produced it would be impossible to deal with it
satisfactorily in Parliament. Not only would a code lack the political
appeal needed
to
win the necessary legislative time, but the present
parliamentary process of scrutinising bills clause by clause and line
by line is simply not devised to cope with a project
of
this
magnit~de.~ Even a draft code which was desirable on the merits
would come under heavy fire from the legal profession who would
regard it “as a more or less transparent attack upon the foundations
of
a system which it cherishes.”6 The gut feeling that the law
should be left in the safe hands
of
judges rather than entrusted to
legislation penned by maladroit law reformers is certainly a most
powerful influence both in England and
011
the Continent, and it
certainly helps to make the
life
of
the law reformer more
interesting, but a rational argument it is not.
What loomed large in the codification debate were arguments
drawn from what were believed to be the main characteristics of
codes in civil law countries.
No
reference was ever made
to
the
great and increasing use of codification that common law
jurisdictions have made and are making. Instead, the standard
argument proceeded in three steps. First,
it
was assumed implicitly
that codification in England would be more or less tantamount to
what it is on the Continent. Secondly, Continental codes were
described as being based on a number
of
distinctive and uniform
characteristics. Thirdly, it was concluded that legislation in England
following this pattern would be alien not only to English legislative
practice but also to the spirit of the common law. While
it
is
not
for me to say whether this conclusion is right
I
would like
to
make
a few comments about the assumptions on which it was based, and
in particular to discuss the special attributes that have been ascribed
to the Continental codes. “Codes” said Harry Lawson, “are not
Kerr, “Law Reform in Changing Times”
(1980) 96
L.Q.R.
515, 527, 528.
Kerr,
op.
cir.;
Anton, “Obstacles
to
Codification”
(1982)
Jurid.Rev.
15;
North,
“Problems
of
Codification in a Common Law System”
(1982) 46
Rabtrls
Zeirschrifr
490.
See Kerr,
op.
cir
pp.531-533;
Anton,
op.
cir.
pp.28-30;
North,
01’.
cir.
pp.507-508.
Anton,
op.
cif.
p.23.

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