Codification in the United States
In the words of Samuel Williston, in his article “The Uniform Partnership Act, with Some Remarks on Other Uniform Commercial Laws”, published by the University of Pennsylvania Law Review and American Law Register (January 1, 1915):
“Codification has an ugly sound to most American lawyers. We have been trained to believe that no code can be expressed with sufficient exactness, or can be sufficiently elastic to fulfil
adequately the functions of our common law. The -iridescent legal utopia proposed by Bentham and his followers, in which every one should readily know the law, or be able quickly to find it by turning to a code, and in which the professional lawyer would be abolished, has been proved a dream. We know, today, that law must adapt itself to changing conditions; that what is right in one time and place is not necessarily universal truth; that so long as the skein of human affairs is full of difficult tangles the law controlling those affairs cannot be simple, or
understood easily by uninstructed persons; that much of our law is in too vague a form to be written down; that new -cases may arise tomorrow for which the common law will find an answerthough neither the question nor the answer could be suggested by one who framed a code today.
The instinctively hostile attitude of American lawyers has been made more pronounced by the inadequacy of the attempts in the United States to draft elaborate codes. Especially the
ambitious project of David Dudley Field to codify the law of New York has served as a warning. The crushing arguments and proofs adduced by James C. Carter, and others, showed the
inadequacy of Field’s proposed draft of a civil code, and prevented its enactment by the legislature of New York-though it was afterwards adopted by California and has been influential
in the legislation of other States of the far west.
It must not be forgotten, however, in any criticism of codification, that practically the whole civilized world, except Englishspeaking countries, is governed by codes; that these codes have
been adopted chiefly during the past century after trial of systems of unwritten or customary law; and that foreign expert opinion seems practically unanimous in favor of codification. We are, therefore, driven to believe that there is nothing chimerical in the plan of codification itself, but that if it has serious disadvantages in English-speaking countries they must be due either to:
- The inferior workmanship of the codes which have actually been produced or,
- To the greater vagueness or rapidity of the growth of the law -of English-speaking countries which makes adequate codification impracticable.
The first of these evils should be remediable if time, patience, hard work, and learning, can be combined to meet them. The second objection, if applicable to parts of our law, cannot be true
of many other parts, including such parts of the commercial law as the Commissioners on Uniform State Laws have attempted to codify. The law of these subjects is in the main crystalized and, indeed, is so far fixed in its main points by numerous judicial decisions that it is practically impossible to change it without legislation.
It cannot be admitted then that there is any inherent difficulty in codifying these portions of the law, other than the difficulty confessedly great, of clear, concise, and accurate statement. If further proof of this were needed, it may be found in experience.
Parts of our law have already been-codified. Criminal law had a long development as customary law. Few would deny that it has been advantageous to codify it, as has for the most part been done. Other examples perhaps less striking, but sufficiently convincing, might easily be given of the successful codification of rules of law which had their development as part of the common
law.
A difficulty in regard to even partial codification which troubles many is the lack of elasticity which statute law has as compared with the common law. That this objection is wholly.
without force need not be contended, but it may easily be overemphasized in regard to such codification of such matters as are here under discussion. The main principles of these subjects have already become inelastic in the common law. They could no more easily be changed than could a statute itself, except by legislation.
W-hat may be called the fringe of the subject is doubtless open to possible development and growth at common law, but this possibility still remains for all the uniform statutes provide that
as to matters not specifically covered by the Act, the rules of common law and equity are applicable.
As to points specifically covered by the Act, if a change is found desirable, experience shows that it is perhaps not more difficult to get a legislature to amend a statute than to get a court
to overrule a previous decision.
The advantages of codifying such portions of the law are:
- To produce uniformity of law;
- To state the law in a compendious form in which it will be susceptible of easier reference and more exact determination than if sought from decisions;
- To settle uncertain questions of law without legislation. Even in so old a State as Pennsylvania there are doubtless questions which would be settled by the enactment of the Uniform Partnership Act, or of the Uniform Sales Act, which could now be determined only by litigation. Legislation is cheaper than litigation as a means of fixing the law in these particulars. In the newer States this advantage is entitled to the greatest weight;
4. To harmonize into a more consistent whole a body of doctrines, many of which have grown up, if not at haphazard, at -least without particular reference to one another.
In the partial codification of certain subjects attempted by the Commissioners on Uniform Laws the first of these advantages has been the only one directly sought; but in support of their acts the Commissioners may fairly urge whatever incidental advantages may be derived from uniform codification of the subjects in question. (…)
The second advantage which I have suggested for such partial codification as the Commissioners are attempting may be more clearly understood if we consider for a moment the volume of the present sources of our law; for existing conditions furnish an argument for the passage of uniform laws at once both because of the desirability of preventing further crystalization of differences in State jurisdiction, and also the desirability of stating, so far as may be possible, in brief form rules of law which at present can only be found by searching through many volumes.
For the purpose of showing bulk of the existing sources of the law, I have had a rough count made of existing American Law Reports (see more about the problems of American Law Reports here). (…)
Furthermore, in so far as each jurisdiction becomes a law unto itself, it intensifies the evil of diversity of law. If the whole country could look to the same common law, the probability
that New York and Ohio might have the same rule on a given matter as Pennsylvania is far greater than when Pennsylvania, New York and Ohio each looks only to its own decisions
to find the governing principle.
It may be urged, however, that the statutes themselves have shown astonishing increase in volume, and that one of the recognized and crying evils of the times is the vast legislative output of statutes each year. This is true, but it is not the number of statutes so much as the kind of statutes which is the real evil.
Statutes which create new and unnecessary rules of law are a burden. Statutes which successfully reduce to briefer compass laws already existing are a gain, and it is in the latter class that the uniform commercial acts may fairly be classified.
The final advantage of these partial codifications which I have mentioned-lharmonizing and unifying a subject is one upon which stress may justly be laid, but I will not dwell on it at this
point, since what I shall say later of the Partnership Act will serve at once as an argument and an illustration.
Codification in Europe
It is not always understood to how great an extent the unification of a variety of customary laws prevailing in a given country has been a dominant motive for codification. The Napoleonic Codes enacted between 18o3 and i8io in France have had the widest influence on modern codification. See more about codification in Europe here.
Codification in the United Kingdom
England had a desire to improve the form of English law and has made some advance in reducing the Common law to the form of statute, especially on commercial subjects. See more about codification in England here.
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Europe
It is not always understood to how great an extent the
unification of a variety of customary laws prevailing in a given
country has been a dominant motive for codification. The
Napoleonic Codes enacted between 18o3 and i8io in France have
had the widest influence on modern codification. Indeed, the
codes of the whole of Latin Europe and of Central and Southern
America are largely based on them, as are the codes of Louisiana,
Lower Canada, Belgium and Holland.
Prior to the enactment of these codes in France the law was
customary and varied in different portions of the country. These
customary rules of law had been digested and compared, and the
French lawyers, trained to deal with them, had paved the way
for the codification which followed. Especially the writings of Pothier had furnished the foundation for much which was later
eifacted in the Code Napoleon. Sir Courtenay Ilbert says:
“Of the causes which made for codification in France at
the beginning of this century, the most important were probably
three. In the first place, a strong sense of the practical
evils which arose from diversity of laws, coupled with a passionate
desire for national unity. In the next place, the continuous
efforts of many successive generations of statesmen and
lawyers, all tending in the same direction, all aiming, consciously
or unconsciously, at the same ideal. And lastly, the fact that
the common law of part of the country was wholly, that of the
other part largely, based on law which had already been systematized.”
In Germany the same development may be observed,
although at a later period. The various German states even after
the creation of the Empire had each its own system of law; and
of these, Dr. Schuster, writing in 1896, said:2
“There are therefore six general systems of law, but only
two out of these, the system of the French and that of the Saxon
code, are exclusive systems; the other systems are broken into
by local laws and customs. . . . The result is that in every
case which arises in Germany, the following questions must be
asked: Is there any Imperial statute? Is there any local modem
statute? Is the subject affected by older legislation? What
local law governs it?”
It was largely to remedy this condition of affairs that the
Commercial code was first enacted in Germany, and, later, the
Civil code extended generally over the Empire a uniformity of
law which previously had been confined to commercial matters The evils of diversity of law which have afflicted France
and Germany may in some respects have been worse than those
which we find in the United States. Whatever our differences of
law may be, the main-stream is, with slight exception, the samethe
Common law of England, which is the source of all our law,
excepting the slight infusion of the Civil law which still persists
in the territory obtained by the Louisiana purchase and the
Mexican war. Nevertheless, the situation is not pleasant to contemplate, for a nation which prides itself upon being a practical
people, of the varying rules of law which our system of State
and National governments have given us. Nor is the remedy
which could be applied in France and Germany of a national
codification open to us. We must seek, through (United States) State legislation,
to obtain such uniformity as is possible.
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Codification in the United Kingdom
England had a desire to improve the form of English law and has made some
advance in reducing the Common law to the form of statute, especially on commercial subjects. See more about codification in England here.
It has been said (in Ilbert: Legislative Methods anid Forms, p. 16o) that the chief motive power leading to
codification on the Continent of Europe has been the impulse of
national unity and the practical inconveniences of the co-existence
of different systems of law in a country under the same political
government. This motive power does not exist in England, and
does exist in the United States, if in a less degree than in some
countries of Continental Europe. Nevertheless, England from
a mere desire to improve the form of English law has made some
advance in reducing the Common law to the form of statute,
especially on commercial subjects. The first important statute
of -the kind passed by Parliament was the Bill of Exchange Act
enacted in 1882; the next was the Partnership Act passed in i8o,
and the third, the Sale of Goods Act passed in 1893. The first
and the last of these were drawn by Sir M. D. Chalmers; the
Partnership Act was drawn by Sir Frederick Pollock. All of
these statutes have operated successfully in England, and
all have diminished in large measure the labor of determining
the law. On most questions it is easier to obtain an answer to
a question in the law of negotiable paper, sales or partnership,
from the brief annotated statutes prepared by the authors of these
Acts, than it previously was to obtain such an answer from the
large treatises which have in a great measure been rendered unnecessary.
Difficult questions, of course, arise which are not
readily answered by examination of the statutes, but, as Sir Frederick
Pollock says:
“It is not to be supposed that difficult cases can be abolished,
or to any great extent made less difficult, by this or any other
codifying measure. But since difficult cases are after all the
minority, perhaps it is of some importance for men of business
to be enabled to see for themselves the principles applicable to
easy ones.”
The history of the English Partnership Act is thus stated
by Sir Frederick Pollock in the preface of his annotated edition to the Act:
“In 1879 I drafted a Bill intended, first, to codify the
general law of partnership; secondly, to authorize and regulate
the formation of private partnerships with limited liability, corresponding to the socit6 en commandite of Continental law;
and, thirdly, to establish universal and compulsory registration of firms. The two latter objects were those which my clients
at that time were most bent on. Subsequent experience has
shown, I think, that there is not much real demand or need for
either innovation. The registration part was dropped in i88o
as a condition of the general approval of the Board of Trade.
In 1882 the Bill made so much way as to be reported by a
Select Committee, which, however, declined to proceed with.
the limited partnership scheme. After being again introduced
several times without reaching the stage of effectual debate,
the Bill was, in 1888 and 1889, further considered by the Board
of Trade and the Attorney-General with a view to its adoption by Ministers. In i89o it was introduced by the Lord Chancellor
in the House of Lords, and there revised by a Select Committee,
which made various changes in the arrangement of the
sections and a certain number of amendments. The Bill passed through the House of Commons with a few further amendments,
due partly to Sir R. Webster, then Attorney-General,
and partly to Sir Horace [now Lord] Davey, became law, and
came into operation on January i, i89z.”
In 1907 another act provided for limited partnerships.
The English Partnership Act, like the English codifications
of the law of Bills and Notes, and of Sales, is an attempt at an
exact restatement of the English case law. No improvement
in that law is attempted, the object being apparently to furnish a
concise and exact statement which will make the labor of lawyers
easier, and will in many cases enable business men to determine,
without consulting lawyers, what the law may be. Great as are
the evils of the conflict of authority in the United States, due to
the numerous independent jurisdictions, this conflict has given to
the American Commercial Acts (which have been based on the
English models) a distinct superiority to them. In England,
whatever is decided becomes the law; and no matter, though the
decision may be inharmonious with general principles, the codifier
has felt bound to accept the result. In the United States the
decisions of no single State are taken as the model. The drafts man is not primarily seeking to reform the law, but in attempting
to weld a uniform and coherent whole from decisions of fifty
States he necessarily discards local decisions which are inharmonious
with the general principles of his subject. He can do this safely because he is sure to find decisions which support him.
If in all the jurisdictions of the countty there is none which takes
the viev which seems to him sound, he is pretty safe in attributing
his own view to personal idiosyncrasy.
The American statutes have had another advantage over the
English models, because they have been drawn later and the
American draftsmen have had the English statutes as models
from which they could take whatever seemed helpful, and discard
or improve upon the rest. Moreover, the American statutes
have probably had a longer and more thorough examination by a
great number of competent persons, other than the draftsmen,
than has been the case with the English statutes.
Codification in the Context of Law Research
The Thurgood Marshall School of Law Library defined briefly Codification as: The process of collecting and arranging systematically, usually by subject, the laws of a state or country.Legal research resources, including Codification, help to identify the law that governs an activity and to find materials that explain that law.
United States Code (U.S.C.) in the Context of Law Research
The Thurgood Marshall School of Law Library defined briefly United States Code (U.S.C.) as: A multivolume published codification of federal statutory law.Legal research resources, including United States Code (U.S.C.), help to identify the law that governs an activity and to find materials that explain that law.
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