British Institute of International and Comparative Law

The Codification of Law

Author(s): Frank Gahan
Source: Transactions of the Grotius Society, Vol. 8, Problems of Peace and War, Papers
Read before the Society in the Year 1922 (1922), pp. 107-116
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
Stable URL: https://www.jstor.org/stable/742715
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 ( 107 )

THE CODIFICATION OF LAW.

By FRANK GAHAN, M.A., LL.B., B.C.L

Codification of law may mean no more than

law into a compact form, setting out existing
of concise general principles. Such a code is a
tion or digest of the law; its concern is not s
substance as with the form of law. On the other hand,
codification may be much more ambitious. It may aim at
supplying a complete logical system of ideal law. Considering
the subject from the standpoint of International Law, both
these aspects of codification should be viewed; but I do not
propose to consider the mass of stock arguments for or against
codification in either sense. I shall confine myself to a few
fundamental problems. To be concrete rather than abstract, I
propose to keep in mind the German Civil Code as the one
shedding most light on the problems.
Under the idea of a law of natural reason as an infallible
guide, there was at one time a fondness for that type of
codification which English opponents of codification too often
treat as the only method-the type which seeks to do away with
all interpretation, which may with soundness be opposed to
judge-made law, which seeks to provide a rule to meet every
possible combination of circumstance, and which would forbid
the judges to swerve from the letter of the code. Gibbon, for
instance, in his famous chapter on Roman law, declared: " The
discretion of the judge is the first engine of tyranny. The laws
of a free people should foresee and determine every question
that may probably arise in the exercise of power and the trans-
actions of industry." Frederick II. had given the Prussians
such a code, Maximilian had imposed one on Bavaria, while
in the Austrian Landsrecht Maria Theresa had built on like
foundations. Then there is Napoleon's Code and the B1adisch

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 ( 108 )

Landsrecht of 1810, which) is but an adaptation of it. As late

as 1865 the same idea was prevalent; and the authors of the
Code of the State of New York boasted that it " provided for
every possible case, so that when a new case arises it is better
that it should be provided for by new legislation."
In any system of law, and particularly in International Law,
which offers scope for development along lines which no man
can foresee, such a code is dangerous. Case-law, interpretation,
and development cannot be shut out, however skilful the
draughtsman, as the history of the French Code shows. But
the law may easily be confined within limits from which it
cannot escape. There is a tendency to regard a carefully-
prepared code as less readily to be amended. Thus in 1804
the position of women in France compared favourably with their
position in England, but respect for the code prevented their
position developing as rapidly as, or to the extent to which, it
otherwise would. The same criticism applies to the importance
-very small in the early nineteenth century, very large in the
twentieth-of personal property, life insurance, and the relation
in highly-developed industries of employer and employed.
The fundamental objection to such a code is, however, its
failure to provide for equity; and the doing of equity is, to my
mind, the biggest problem before International Law or any
codification of it. I use equity in the Aristotelian sense to
denote the guiding principles for the adaptation of general rules
to particular cases, and especially to cases which transcend the
rules in one way or another. Equity often finds no place in
Chancery law. Thus, in the famous Romford Market case-
Keech v. Sand ford-the court said in effect: " We cannot
adapt our rule to an isolated hard ciase; we cannot do you
equity, but must give you rigid Chancery law." On the other
hand, there are in England to-day many examples of far-reaching
equity based on statutory reform, notably decisions under sec-
tion 4 of the Criminal Appeal Act, where convictions have been
affirmed, despite serious irregularities, on the ground that no
substantial injustice has been done. Whether law be codified
or not, whether it be municipal law or international, there is-
I think must be-a permanent demand for equity, and side by
side with it a deep-seated distrust, sometimes hatred, of equity.

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 (109)

There is a cry for what is intrinsically right and fair in eac

case, and an outcry against the fluid state of law in which
alone such abstract justice is possible. The history of law in
every system is the constant attempt to hold the balance
between these two opposing principles. Where equity is give
undivided rule, as in certain phases of Greek jurisprudence,
the system dissolves into thin air. Where an unvarying fount
of unquestionable authority exists, as in the religious writings
on which all Mohammedan law rests, there is a failure to meet
changed conditions. The dislike for equity rests on the demand
for certainty in law, very insistent in any commercial community.
The most absurd technicalities will be tolerated if the merchants
know what they are and their precise effects. Consequently,
commerce is opposed, not only to equity, but to codification;
for merchants fear that, unless the code merely states existing
law, a proposition as simple as 2 + 2=4 might result in unsettling
litigation to determine the effect of 4 " within the meaning of
the code." But even in a commercial community the other
tendency is as strong, and in the long run more persistent. It
is felt that in each particular case the decision, examined only
in the light of the facts there existing, should be good and just.
The German and the Swiss Codes have shown that the demand
for equity, and so for flexibility, is consistent with, and can be
satisfied by, codification. In municipal law the problem can,
therefore, speaking broadly, be regarded as solved. In Inter-
national Law, however, the task is infinitely more difficult.
However impartial the judges who administer it, there is bound
to be international suspicion. I remember the feeling in Canada
at the time of the Alaska boundary dispute with the United
States. The decision was obviously right; but throughout
Canada Lord Alverstone, because he had agreed with the
American members of the arbitration board, was accused of
having betrayed Canada's interests. Against judges of a foreign
nationality feeling will often be more acute. Consequently,
International Law cannot in its code leave a wide discretion
to its Judges, and other methods of doing equity must
found. As regards the Permanent Court of Internation
Justice, I look with hope to the development of such a met
from the refusal, which I hope will be long maintained,

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 ( 110 )

enforce compulsory reference. Where reference is only by

agreement, there is endless scope for adjustment; and although
the development of a settled body of International Law effec-
tively administered by the Court may be delayed, the natural
growth will probably produce a better body of rules than would
a logical code compulsorily administered, but excluding, as it
would have to exclude, all judicial discretion.
The public-in England, at any rate-is little concerned with
International Law, and the work of codification will be that of
jurists. However well they do their work, there is, nevertheless,
a danger in establishing a code which has not stood the fire of
criticism from an interested public. On paper it will look very
nice; it will be unanimously approved by the International Law
Association and have the support of enlightened lawyers, but
when put to the proof in actual practice it may collapse. Look,
for instance, at the German Commission of 1874. For thirteen
years eleven distinguished jurists laboured, but with too idealistic
an aim. They made too sweeping inroads on the law as it had
been. The German nation would not have the code. It would,
indeed, be a fortunate day for International Law if a draft
code could arouse such a storm as then swept Germany. Gierke
lead the Germanists, saying there was too much Roman law;
the Socialists thought the draft capitalistic and too indivi-
dualistic; commercial, agricultural, and industrial interests each
had their objections. The late F. W. Maitland gave a delightful
account of what happened: "A nation became profoundly
interested in its legal system. A tornado broke loose. It rained,
it poured, books and pamphlets. The project was criticised from
every point of view; and though lawyers may have been keenest
in the fray, they were by no means the only combatants. The
whole nation seemed to convert itself into a debating society,
in which, however, everybody spoke at once. The general result
of the debate was unfavourable to the draft. It was condemned
as too abstract, pedantic, 'doctrinaire,' too Roman and too
un-German; and, besides all this, countless objections were taken
to particular provisions. One might have thought that the whole
scheme would perish."
Yet that storm was the making of the German Code; for in
1890 a second commission was appointed, consisting of twenty-

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 ( 111 )

two, for the most part practical and business men, and including
only four members of the first commission. Drafts of the
various provisions were published as they were completed, and,
by means of the criticisms provoked, the commission kept in
touch with public opinion. A second draft code and a revised
draft were presented in. 1895; and after much debate and
amendment the code was passed in 1896, and on January 1st,
1900, came into force. It is an admirable code, but it is safe
to say that, had the first draft been passed through public
indifference, Germany would have regretted having so codified
her law. -The nation in 1887 was' quite clearly, and I think
rightly, of the opinion that no code was better than a bad code.
In International Law there is no hope, I fear, of the com-
mittee on codification putting a match to a powder magazine.
It will work in obscurity, and bring its work to fruition in
obscurity. There will be too little destructive criticism. It will
seem ungracious to ridicule enthusiastic well-meant labours, and
so the code hammered out by friendly jurists in committee may
eventually be saddled on the world without the mature con-
sideration it deserves. Without hostile criticism the committee
will be working at a grave disadvantage.
That is no reason, however, for abandoning the task, but it
may affect the method. The method of gradual consolidation
seems preferable to more ambitious codification. The law, as
it exists, can be stated with clearness and precision in its
application to limited spheres, as has been done in England by
codifying statutes, such as the Sale of Goods Act and the
Bankruptcy Act. Occasionally minor amendments may be
made, as in the Larceny Act of 1916. In certain departments
of law a commission of experts may indeed embark on sweeping
reform, as witness Lord Birkenhead's Act. I doubt if that
great achievement gained or lost the late Government a single
vote in the election. It was the work of jurists working amid
public apathy; yet undoubtedly it is work well done and of
inestimable value.
Lord Birkenhead's Act illustrates pne 'of the greatest, if not
the greatest, benefit of codification. In the course of codification
the law is scientifically examined. Is it rational, coherent,
modern? Obsolete law is removed, efficient rules substituted

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 ( 112 )

for inefficient. Again, to quote Maitland: " Destructive work

is as necessary and as honourable as constructive. One of the
primary functions of a Legislature is, I conceive, to sweep into
the dustbin that rubbish that inevitably accumulates in the
course of legal history. From the very nature of the case this
scavenger's task cannot be performed by the judges. Much
they can do in the way of accommodating old law to new wants;
but they can never say that the old rule is rubbish and must
go to the dustbin. Yet that is what someone ought to be saying,
sternly and effectually."
The need for saying it is even greater in international than
in municipal law. Codification has the great advantage of filling
the dustbin; and, as at the date of the code, it brings the law
up-to-date, ready to face modern times with modern ideas,
modern machinery, modem weapons. But in codifying any law
the casuistic method of the Prussian Landsrecht, the rules of
which were to fit every conceivable state of facts, should be,
as it was in the case of the German Code, deliberately and
decisively abandoned. Machinery must be provided to prevent
the future accumulation of dust. An international code which
can only come into being by general international agreement wi
be particularly hard to amend, and in a living growing body of
law it is a fatal objection to codification that the law is mad
unduly rigid. Consequently, if a code is to succeed, effectiv
machinery for periodic revision and speedy amendment mu
be made. Take, for instance, that part of the Biirg erliches
Getsetzbucoh, where the Germans foolishly attempted to provid
for every contingency-the rules of procedure. Of them Dr
Schuster says: " The authors of the B.G.B. have taken great
pains to show, when establishing any rule, how the burden of
proof respecting compliance with the rule is to be apportioned
between the parties, and they have adopted peculiar modes o
expression intended to give a guidance to their meaning. Th
rules are too complicated and subtle to be reproduced in this place
and it is not certain whether they will always be followed, mor
particularly as they have not been carried out with complet
consistency." Then contrast the English codification of th
rules of civil procedure-for the Rules of the Supreme Cour
form a code, and an admirable one. But it is admirable,

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 ( 113 )

because machinery exists for keeping it up-to-date. Reforms

can be introduced, and, if ineffective, abandoned. Thus in 1893,
by Order XVIIIA., provision was made for speedy trial of cases
without pleadings. But in 1918, as experience showed the time
was not ripe for the reform, the rule was quietly deleted. The
whole body of rules is alive and kept up-to-date. The German
Code shows, in its main provisions, that a code of the whole
body of law can be made similarly alive. Already many amend-
ments have been made. It is not a dead mass of law, but is
capable of developing with the times. The proper aim of a code
is to spring-clean and modernise the law, to pass it through
modern minds which will criticise and refine it, and present it
as a single coherent homogeneous whole, but to do this without,
forcing it into a rigid and unchanging mould less to be tolerated
than utter disorder.

The Germans have also been wise, I think, in making no,

attempt at that simplicity of law for which many enthusiasts.
favour codification-pruning away rules of the greatest value
for the sake of logical order-preferring a nicely-painted flagstaff
to the unsymmetrical foliage of a living tree. A good code will
necessarily be complicated, for the circumstances to which the
rules must apply are infinite. An attempt, therefore, to produce
a code understanded of the people must fail. The Germans
made no such mistake, as witness Dr. Schuster: " The language
of the codes is so highly technical and the various parts of each
code and the several codes and statutes respectively are so
inextricably interdependent that it requires a most elaborate
system of explanations and cross-references to show the exact
meaning of any particular enactment. . ... The number of
comprehensive systematic treatises dealing with the whole of
the law or with special branches of the same, the number of
annotated editions of codes and statutes, is indeed legion, and
monographs abound on every conceivable point."
The Germans realised that judicial discretion often produces
better law than jurists working apart from particular facts, and
so were content on many important matters to state general
principles, leaving the detailed rules to be settled by reported
decisions. Thus B.G.B. 242 provides: " The debtor is bound
to effect the performance according to the requirements of good
G.S. 8

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 ( 114 )

faith, ordinary usage being taken into consideration "; and

B.G.B. 626 enacts that "A contract of service may be
terminated by either party without the observance of any term
of notice if a cogent reason exists "-clauses which obviously
contemplate a chain of judicial decisions to establish the require-
ments of good faith, and the circumstances which clothe a
reason with cogency. Some of the judicial law affords interesting
comparisons with English rules. Thus B.G.B. 138 states, "a
juristic act which is contra bono8 mores is void." Under this
head come agreements in restraint of trade; and the German
judge-made law is much as laid down in Nordenfelt v. Maxim-
Nordenfelt Guns and Ammunition Co., with this important
difference-that out of an agreement void on such grounds the
German Courts, unlike the English, will carve, if it is possible,
a valid restriction, and hold the agreement pro tanto good.
Those who drafted the German Code and the Swiss Code knew
that in such matters judge-made law is much better than thei
abstractly devised rules could be, and they frankly relied o
judge-made law as an invaluable supplement to the code.
In International Law, however, the discretion of the judg
must be severely ourbed, and therefore simplicity and genera
propositions must be avoided in the code. Otherwise its terms
will be almost as meaningless as the American declaration that
" All men are born free and equal." Consequently, if an
international code is to be of value, it must be elaborate and
detailed. Those characteristics will, however, before many
years make it an untolerable burden-a brake on the develop-
ment of International Law-unless at the same time speedy and
effective machinery is provided for the frequent revision of
the code.

(Read before the Grotiu8 Society on November 21st, 1922.)

Sir Alfred Hopkinson said the subject of the paper was very
wide. As a law teacher he was no doubt biassed, but he thought
that case-law was more scientific than a code.
Mr. Manisty was not in favour of codifying International Law
at present. Codification in England had only come after many
generations of judicial decisions. After the Permanent Court

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 ( 115 )

of International Justice had judicated, codification would be

more feasible.
Master Jelf contended that the best law was judicial law made
by judges. Conventions were unsatisfactory, since each party
was fighting for its own national interests and not for justice.
Mr. Bewes said that many parts of our law required a clearer
statement. Private International Law could be codified quite
easily, since it did not depend on written law. In many States
which have codes the judges are directed to decide every proper
case which comes before them, whether it is directly within
the terms of the codes or not; and for this purpose they have
resort to (1) analogy, (2) equity, and (3) the opinions of
text-book writers and decisions in analogous cases in foreign
countries. Systematic provision of codes was, of course,
necessary, otherwise that might happen which had happened
with the Code of Napoleon in the case of the law affecting
married women and succession, which in each case is extremely
unsatisfactory and without amendment for more than a hundred
years. The Permanent Court of International Justice is in
terms prevented from citing its own decisions as authorities for
any fresh case before it. But it is absurd to suppose that judges
would in practice ignore their own previous decisions. This is
well seen in the case of numerous countries, where theoretically
the same rule obtains, and where in practice the decisions of
the Court of Appeal, but not of Courts of first instance, are
regarded as binding.
Mr. Petrie contended that a code need not be so rigid, as to
become fossilised. There were numerous decisions of case-law
in the Belgian and French Codes, interpreting the general
principles contained therein. In commercial matters codes of
various outstanding subjects were necessary. In Public Inter-
national Law there were many questions ripe for codification-
for instance, the Laws of War.
Mr. Mullins considered that the result of codification was
rather bad than good. For instance, in the German Penal Co
the offence of murder with deliberation had given rise to g
failures of justice. It had been used to defend the officer
the Leipzig trials, who had fired on the shipwrecked crews
their boats.

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 ( 116 )

Professor Bellot pointed out that the committees of the

International Law Association engaged in codifying parts of the
law took care to include on the committees experts on the
particular questions involved, with the result that the Regulations
were accepted by all parties. He instanced the Regulations for
the Treatment of Prisoners of War.
Sir Alfred Hopkinson said that legislation was prima facie
bad. Codification of Private International Law was not only
desirable, but essential. It was a matter of agreement. The
Regulations, for instance, of the Treatment of Prisoners of War
were a bargain between nations. The Declaration of London
was, however, an instance of how not to codify International
Law on such questions as contraband. The codification of
partnership law had only led to confusion.
In reply, Mr. Gahan said that discretion was given to the
judges in the interpretation of codes, but if a case fell within
the terms of the codes they were embarrassed. The German
Code had adopted judge-made law. He gave instances from the
Civil Code, in which the Court was empowered to act upon
equitable principles. They were developing, as in England, a
pure body of judge-made law. In fact, the law was in a state
of uncertainty until judicial decisions had been given. Codifica-
tion directed the mind to scientific treatment of the law, and
swept away obsolete law.

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