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The Legal Holy Grail? German Lessons on Codification for a Fragmented Britain

Document Cited authorities 9 Cited in Related
Vincent
Author
DOI10.3366/elr.2018.0482
Date01 May 2018
Pages183-210
Published date01 May 2018
INTRODUCTION

Codification appears to be having something of a renaissance in the British jurisdictions. Only a few years ago, the then Chairman of the Law Commission (LCEW), Munby LJ (as he then was) claimed that codification was “little more than a distant memory” for the Commissions.1 Recent calls have, however, been heard for the Law Commissions to “salvage” their codification duty,2 and other potential means of codifying have also been mooted.3 One reason the Commissions were tasked with striving for codification when they were established in 1965 was impending entry into the then Common Market. Given our impending departure from the European Union (EU), the timing of codification's apparent revival seems, at first sight, puzzling.

After a brief examination of codification's history and track record in Great Britain, we address the question of why codification is coming back into vogue. One reason for codification's current popularity is devolution and the desire for codes to bring order to the flood of laws pouring out of multiple legislatures. Relatedly, a recent surge in Scottish and Welsh nationalism (which may well turn out to be temporary) led to the suggestion that codes could “celebrate and bolster national identity and legal culture”.4 We posit that it is no coincidence that impending Brexit has put codification back on the agenda. Brexit is “par excellence” an example of our fragmented territorial constitution.5 While England voted 53.3% in favour of leaving the EU, Scotland voted 62% in favour of remaining.6 It is no surprise that, in the light of those figures, the aftermath of the referendum has seen increased friction between the nations of the UK. Indeed, impending Brexit puts a question mark over the future of the Union, given that the EU has been described as “part of the glue holding the United Kingdom together”.7 Casting our eye to other jurisdictions, we see that codification has often been a solution in times of great constitutional turmoil. Interest in codification waxes and wanes in uncodified jurisdictions. It is therefore no surprise that codification has become a live issue once again in Great Britain, perhaps partly as a result of political uncertainty.

In order to establish whether a codification revival is to be welcomed, we look to Germany for its wealth of experience as a codified country. To determine both the feasibility and desirability of codification, we examine the reasons which led to German codification and its advantages and disadvantages. We also confront the issue that codification means different things to different people, and has historically been more achievable in the British jurisdictions in a more modest “codifying statute” style. Ultimately, we provide some lessons from Germany as to why more ambitious “continental-style” codification may not be possible and why codification (whatever its style) may not be the Holy Grail its advocates think it is.

 CODIFICATION: A GERMAN HISTORY LESSON

The starting point for assessing plans to codify the laws of the British jurisdictions is defining what is meant by “codification”. It is not a “term of art” in Britain,8 and failure to define what is meant can result in a confusing dialogue and can even thwart codification attempts.9 In the British jurisdictions, codification has been given various meanings – from full codes of the entire criminal law, to more modest “codifying statutes” on smaller pockets of law such as sexual offences. But to a continental lawyer, the meaning is clear. Codification involves broad areas of law, in particular the entire civil or criminal law, being contained in one comprehensive enactment (hereafter “continental-style” codification). Because they are intended to be the complete source of law in an area, it logically follows that continental codes are succinctly drafted. Take, for example, the definition of a “thing” from the German Civil Code (Bürgerliches Gesetzbuch; BGB): “Only corporeal objects are things as defined by law”.10 The definition is necessarily brief because to go into more detail would defeat one of the purposes of a Code being a manageable size. But such a definition will inevitably leave a penumbra of uncertainty – is water, for example, a “thing”?11 Because of that uncertainty, there is more scope for judicial interpretation in a codified system than in a common law system where statutes are typically more tightly drafted.12 But, because of the exclusivity of the code, those judicial interpretations cannot formally set a precedent for future cases.13 Codifying statutes can also be found on the continent, but there they would be more commonly described as plain Acts, not codes at all.

Here we will tell the “story” of the BGB and what led to codification in Germany.14 Our purpose in doing so is to demonstrate why codification, although not “in some mystical way incompatible with a common law system”,15 is not an obvious fit with a common law (or partially common law) system either, at least in a continental style.

Because of a lack of centralised power in Germany, the law was highly fragmented and often confusing prior to its codification. During the Age of Enlightenment, the idea of codification really began, with a desire for a consciously designed and rationally constructed legal order.16 The main aim of codification in the eighteenth century stemmed from the idea that solutions could be found for future controversies by creating a systematic and all-embracing legal order.17 It was an enticing concept, especially given the smaller number of laws needed back then; however, a century later, the luminous “star of the rational law”18 was in decline. A rejection of the rational law emerged, in part, as a counter-movement by the Historische Rechtsschule (Historical School of Jurisprudence) which Friedrich Carl von Savigny was instrumental in founding.19 Savigny saw law as a “historically grown cultural phenomenon”.20 He believed that law grew in society via an organic process,21 and therefore contended that codification was out of touch with everyday life.

For representatives of the Historical School, “genuine” law was customary law,22 the law that is established from the “‘common consciousness of the people’ … in much the same way that a nation's language is an organic development from ancient origins rather than the product of rational design”.23 Broadly speaking, Savigny rejected the concept of creating abstract norms from general rules of rationality, which were valid for everybody without considering the cultural origins (or so-called Volksgeist, the “spirit of the people”).24 Law, he thought, could not be constructed logically and should not be regarded as a random grouping of rules set down by some authority.

Later in the development of the Historical School, however, the Pandectists emerged.25 They aimed to give Roman law (which had been taught in German universities and used in German courts for centuries due to the lack of domestic unity) a systematic treatment.26 Needless to say, this did not proceed without conflict, largely due to Savigny's rejection of codification.27 One of the main reasons for the Pandectists' aim was the legal situation before 1900, which was highly confusing for both the German population and jurists. For example, if a jurist dealing with a particular case lived in Prussia, the Allgemeine Landrecht had to be used; however, if a jurist lived in Cologne, the French Civil Code had to be applied. Whereas a jurist from Frankfurt had to revert to Roman law as the “common law”, the jurist from Saxony could draw on the Saxon BGB.28 Alternatively, they could all orientate themselves to Roman law in its modern form by using the Pandectists' textbook.29 Every German jurist at that time was taught using the Pandectists' textbook in the universities. This paved the way for the later great codification,30 by providing a systemised starting point.31 The BGB is therefore often labelled as “Roman law cast in paragraphs”32 – indeed, the same could be said for all civil law codifications of the European continent.33 The BGB, the Code Civil, the Wetboek, the Código Civil and the Codice Civile were drafted in different languages, and were adapted at different times and to reflect different local traditions and circumstances, but they all share the same Roman roots.34 Via these codes, laws from many centuries ago still influence the modern European legal orders. The BGB is characterised by abstraction and the abandonment of descriptive casuistry. As a result, techniques for formalising codes were developed, which over the years have led to the codification of German law almost in its entirety. It is no overstatement to label the nineteenth century as the “age of codification” considering how many codes came into effect in Germany alone. The period 1875–1897 saw the enactment of the German Criminal Code (the Strafgesetzbuch); the German Code of Civil Procedure (the Zivilprozessordnung); the German Commercial Code (Handelsgesetzbuch); and the German Code of Criminal Procedure (Strafprozessordnung).

This legal unity did not, however, come about smoothly. During 1874–88, a commission of eleven jurists, including the most “brilliant minds” of the time, worked on the first draft of the BGB.35 Due to massive criticisms of the first draft (which was described as too complicated and too remote from everyday life), the first commission was disbanded. A second commission, which included lay members, was convened and began work in 1890 on a revised version36 which was completed in 1895 and came into force on 1 January 1900.37 The German experience provides a warning of the need for proper consultation if codification is to be pursued.

Unlike England and Wales and (later) Scotland, there were no centralised courts in Germany and thus no system of precedent. Codes rather than courts were therefore the most obvious instruments of unification. This history is important in...

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