"The Challenge of Codification in English Legal History"

Date June 12, 2009
Speaker David LIEBERMAN(Jefferson E. Peyser Professor of Law, University of California, Berkeley, School of Law)
Commentator SHISHIDO Zenichi(Faculty Fellow, RIETI / Professor, Graduate School of International Corporate Strategy, Hitotsubashi University)
Moderator HOSHINO Mitsuhide(Director of Research, RIETI)


David LIEBERMAN Often, from the standpoints of legal expertise, the state and business interests, the idea of modernizing the law through the enactment of systematic legal codes has very powerful appeal. But historically the adoption of codes of law has proven to be extremely difficult. England presents well-known and extreme cases of resistance to codes, and my subject here is to understand the circumstances of England's failure at codification.

The absence of legal codification in England frequently appears as a defining point of contrast between English law and Continental European law. Scholars have generally ignored the substantial efforts within the English legal tradition to construct and implement programs of systematic legislative reform. What I hope to show is that English jurists by the early 17th century had already formulated a distinctive approach to systematic legislative reform of the law; that the favored program of "statute consolidation" was conceptualized in opposition to the alternative model of "codification"; and that for political reasons as much as for reasons of jurisprudence the ideal of "statute consolidation" remained an organizing element of English law reform through the 19th century.

During the course of the 17th and 18th centuries, the law of England received its most influential exposition in the writings of several celebrated jurists. In these accounts, as now, English law was divided into two principal component parts: common law or "lex non scripta" (unwritten law) and statute law or "lex scripta" (written law). The former comprised the legal "custom" of the kingdom, which had been refined and adapted over the centuries under the professional leadership of the common law courts. The latter was the legislation enacted by the sovereign authority of Parliament.

Common law and statute law were conceived as two distinct and separate branches of the legal system even though jurists observed many important ways in which their histories and functions were intertwined. Recognition of these features might have encouraged the picture of a unified and integrated legal order of common law and statute law operating through the authority of several legal institutions and functioning to refine and advance the law through a steady process of incremental growth and adjustment. However, such a benign vision of the relationship between common law and statute was all but submerged by a professional orthodoxy that celebrated the achievements of the common law by measuring them against the failures of statute.

The case for common law's primacy drew in part upon the blunt reality that most of the leading parts of England's law, such as the rules and doctrines governing property and obligations, were plainly the handiwork of the common law courts and not the sovereign legislature. The main argument, however, concerned the qualitative superiority of the common law. The gradual historical process of development and refinement had enabled the common law to achieve a level of excellence beyond what any single group of legislators could achieve. In contrast, the episodic record of legislative enactments had produced a large, confused and often redundant body of statute law. The case against the statute law operated on many levels, though the core presumption was that common law would continue to supply the principal form of law for England in the future.

The program for legislative reform favored by English jurists like Francis Bacon, frequently termed "statute consolidation," followed directly from this diagnosis of the strengths of common law and the defects of statute law. Legislative consolidation addressed the legal uncertainty created by verbose and disorganized legal sources. In two crucial respects, Bacon's statute consolidation program constituted an expressly restricted exercise in legislative reform. First, the scheme's primary objective concerned only the verbal expression and organization of English legislation. Second, the scheme was not to be used as a vehicle for transforming unwritten common law into Parliamentary statute. The latter approach he dismissed as a "perilous innovation" that threatened the law's greatest strengths.

Later proponents of statute consolidation did little to alter the basic goals or strategy of this Baconian program for legislative consolidation. Instead, the emphasis - especially in the case of Blackstone and like-minded 18th century commentators - was on the manner in which the increasing volume of parliamentary law making had rendered the law reform project all the more pressing and valuable.

Over the course of the 19th century, major structural changes were made to the organization of English courts and to common law procedures through the vehicle of parliamentary legislation. The decades of the 1820s and 1830s experienced an unprecedented level of public discussion concerning the reform of the law and other public institutions as the nation shifted its focus to domestic matters following the end of the nation's prolonged and costly wars against revolutionary and Napoleonic France.

The future Lord Chancellor Henry Brougham's six-hour speech on law reform to the House of Commons in February 1828 provided a convenient marker for the new ambition and publicity that attended the issue of law reform. Only a few years earlier Home Secretary Robert Peel had secured legislation to repeal and modify many of the most extreme examples of excessive penal severity in the statute book, thereby realizing a reform objective that had been agitated in Parliament since the 1810s. In 1824, a chancery commission was appointed to resume consideration of long-established complaints concerning the costs and abuses of justice in the Court of Chancery. Brougham, in 1828, identified several other major areas that demanded attention. In the aftermath of Brougham's marathon speech, two royal commissions were established with broad mandates to recommend changes in the law, one addressing the common law's notoriously complex law of real property, and the other covering the criminal law.

These law reform initiatives also included the most extensive discussion of and proposals for legislative codification in English legal history. Projects of legislative renewal continued to be framed by the traditional project of statute consolidation and the authority of Francis Bacon. This, in part, was the result of the extent to which so many of the great 19th century legal reforms addressed problems that had been first identified centuries earlier. But in addition, the remarkable survival of the native tradition of "statute consolidation" had as much to do with British politics as with historical continuities. For its opponents, codification was reinforced as a radical and foreign reform program at odds with the traditions of English jurisprudence. In contrast, "statute consolidation" offered a way to embrace legislative reform that acknowledged the need to order and compress the statute law while shielding the common law from parliamentary interference.

English jurists of the 17th and 18th century naturally took Justinian's Code of Roman law as their model, but France's 1804 Napoleonic Code was a much more recent and potent example of comprehensive codification. Debates over law reform were quick to draw on this current and cosmopolitan context. By the early decades of the 19th century, Britain had acquired its own native voice for systematic legislative codification in the jurisprudence of Jeremy Bentham.

In explicit contrast to the conventional project of statute consolidation, Bentham's code was designed to reform both the content as well as the form of the law, and to codify the entire legal order, thereby turning common law into legislation. Bentham sought to exploit the political opportunities of the post-Napoleonic era by composing several "Codification Proposals" in which he called upon the liberal nations of the world to codify their laws and advertised his own willingness to draft a model code for any country that offered him an official invitation. In these writings, Bentham claimed that English lawyers resisted codification purely for reasons of narrow, professional self-interest. Lawyers and judges defended common law because the complexity of customary law, its arcane terms and cumbersome procedures, all served professional power and profits. The untrained community at large could never acquire satisfactory knowledge of an unwritten law and therefore was left to the mercy of lawyers and judges to discover what the law demanded.

By the 1820s, Bentham had become an ardent and controversial advocate of radical democratic reform. In his reform writings of this period, he linked codification to the project of fundamental democratic transformation of the social and political order. The uncodified common law, he argued at the time, figured as but one institutional element in a system of corruption in which hereditary and professional elites advanced their "sinister interests" through institutions and practices that frustrated the welfare of the general community. In adopting this view of codification, Bentham joined earlier and contemporary English radicals in joining together law reform and political reform. But for the opponents of codification, this advocacy made codification appear even more dangerous and menacing.

The complex political and institutional considerations attending English law reform can be illustrated in the fates of two different 19th century efforts at criminal law reform. The more ambitious of the two was the 1833 Royal Commission on the Criminal Law. The Commission contained five members, three of whom were academic lawyers. These included John Austin, the one avowed disciple of Bentham among the commissioners. Over the course of its lengthy deliberations the Commission produced eight voluminous Reports of His Majesty's Commissioners on Criminal Law.

Whereas the First Report of 1834 emphatically endorsed the codification goal to unify existing common and statute law into a single legislative enactment, the Seventh Report in 1843 revised this initial priority, emphasizing the greater coherence and sophistication of the common law treatment of crime compared with the statute law, and the need in any legislation to preserve the superior achievements of the common law. Legislation based on the Commission's labors was introduced in Parliament in 1848 and fitfully progressed through a succession of select committees. However, as on numerous other 19th century occasions, parliamentary law reform foundered in the face of judicial and elite professional opposition.

The second example of criminal law reform was the slightly earlier legislative efforts from 1826-1830, when Parliament enacted a series of Criminal Law Amendment Acts. The legislation moderated the capital sanctions created by previous statutes for many property offenses and achieved significant consolidation of the statute law. Robert Peel, the political leader most responsible for the reform effort, made the case for this critical "consolidation of the criminal laws" in a lengthy Parliamentary address in 1826. He explicitly quoted the testimony of Francis Bacon in explaining that what he proposed "tendeth to the pruning and grafting of the law and not to plowing up and planting it again; for such a move I should hold indeed for a perilous innovation." Throughout the parliamentary campaign, he emphasized the moderation and practicality of his reformist goals. His success at realizing a program of reform that had been previously frustrated in Parliament was a testimony to his considerable political skills, as well as to his ability to maintain the support of key constituencies, especially the common law judges.

English lawyers found that neither their legal training nor tradition inhibited their capacity to codify. Particularly in the context of the British Empire, codification proved quite congenial to British governors. Thus, under the direction of English lawyers, 19th century India experienced a series of successful and ambitious codification measures, including penal law, criminal procedure, the law of evidence and the law of contracts. But the efforts of reforming jurists to draw on these examples for the purposes of transplanting Indian codification back to Britain proved distinctly unsuccessful.

It would be rash to treat the thin record of codification in English legal history solely as a matter of political imperatives and thwarted aspiration. Peel's reliance on the authority of Francis Bacon in 1826 was politically adroit but also legally apposite. Given the very general terms of its formulation, Bacon's legislative program remained recognizably relevant in the era of 19th century law reform. Ten year's after Peel's speech, yet another royal commission on law reform reported to Parliament, this time charged "to inquire into the consolidation of the statute law." The commissioners elaborated a seven-step scheme for best condensing and ordering the statute book. Their recommendations covered all too familiar ground. As the commissioners themselves explained, their "remedies for the defects of the statute law accord, for the most part" with several of Bacon's early 17th century suggestions from his "Proposal for Amending the Laws of England." For the historian, these statements are a useful reminder that legislative reform in England was never solely the story of the failure of one important legislative program: codification. It was additionally the story of the successful realization of an alternative, older and more limited legislative project: statute consolidation.

The study presented on legal codification in England is impressive, and it can be seen that it is an instinctive desire of lawyers everywhere to try to write down what the law is. One question from the contemporary perspective is: What is the relationship between the attempts at codification in England and the ongoing efforts aimed at codifying the European Civil Code? A second question is: What is the relationship between written or unwritten law, and the substance of the law? Economists are very interested in the distinctions between common law countries and civil law countries, even in terms of corporate governance. Also, are there historical consequences of the different natures of the substantive law in common and civil law?

As a corporate lawyer, I feel that the procedural system of civil law, like in Japan, is too restrictive. For example, a minority shareholder cannot raise an action against management or controlling shareholders if it is not recognized as a form of actions written in the corporate law. While in the common law system, minority shareholders could get a court order mandating better treatment even without any written statute, which is not possible in a civil law system, like in Germany or Japan. For this reason, I prefer the common law procedural system.

Then, another contemporary question that arises is whether or not it is possible to make an "ideal" legal system in some developing countries, like China, which attempts to pick a common law type of "flexible" legal procedure system, by written law. It would take too much time to develop case law in developing countries.

The current frustrations over codification in the European Union also have an immediate political framework. In practice, the effort to unify the law will mean favoring some nation or nations' laws over other nations. It is intriguing that in the early stages of European unification, certain European legal traditions, such as Scotland and the Netherlands, rose to the fore as successful examples of legal hybrids. In English legal history, reform advocates tended to evade the substantive question ? what should the law be ? by emphasizing that statute consolidation was mainly concerned to improve the organization and presentation of the law. I think the opponents of codification were likely correct in their diagnosis that it was impossible to alter the form of the law without also altering its substance.

The second question brings up issues of which system has been more successful at accommodating economic interests in specific areas of law. It is often argued in Europe that business interests want codification and legal simplification. English legal history provides reasons for being skeptical about this. In England, merchants and other business interests were much more interested in procedural reforms than in codification. Business interests typically sought the establishment of separate courts controlled by merchants and free from the delays and costs of common law procedures. Procedural reform, and not legal unification, was the leading issue.

I am not the particularly expert on the vexed question concerning which legal system historically was best suited to support economic development and industrialization. One advantage of a system of customary law, such as English common law, is that the process of development generates a variety of legal forms to handle business and corporate structures. No one structure might be ideal, but the variety of structures provides a kind of flexibility that can facilitate corporate and business needs as they change over time.

It is naive, I suppose, to imagine that a country ever enjoys the moment simple to identify "best" elements of existing legal systems and thereby create an optimal legal system. However, the practice of legal transplants is a very frequent and familiar mechanism of legal change. Historically, it occurred more often through the activity of courts, dealing with new legal problems, rather through legislative action.

Questions and Answers

Q: What factor does culture or society play in legal matters? Would capital punishment during the medieval witch hunts be attributable to a lack of codification in criminal law at the time?

English legal history is full of examples of the overuse of capital punishment. In the 19th century, many lawyers complained of there being 500 offenses punishable by death in the English legal code, the most troubling comprising minor property offenses. Most of these offenses became capital crimes through legislation. As a result, reformers cited the over-use of capital punishment as another example of the poor quality of Parliamentary law-making as compared with the common law.

Q: Francis Bacon thought much about experience and attitude. In the context of Bacon, the legal attitude always relates well to philosophical thinking. The inductive method of thinking is closely related to the common world. The deductive method is related to the thinking of Europe, like the emphasis on logical thinking in France. How do you feel about the historical and philosophical relationship between England and the European Continent?

Some English historians claim that those countries with constitutions are either immature like post-war Japan, revolutionary like the U.S., France, Russia and others, or developing governments in Africa, which have difficulty controlling their countries. What do you feel about constitutions from a legal perspective?

In the UK, the House or Lords functions as the supreme court. Please explain how checks and balances take place given this relationship.

I am sure you are right to emphasize the relationship between the English legal tradition and the English philosophical tradition. But the relationships need to be drawn with care. English lawyers did not see a problem with codifying in the context of the British Empire. Codes were enacted in India, notwithstanding the common lawyers praise for tradition and legal rules created through the induction of many specific cases.

It is always useful to remember the contrasting institutional contexts as well as the contrasting philosophical orientations. In Europe many of the jurists who served as royal advisors on codification and other law reforms were drawn from the universities, where Roman and Canon law were major areas of academic attention. In the case of England, English law did not become a university subject until the 18th century and did not become an important university subject until the 19th century. The leading jurists were based in the profession, at the royal courts and in London's Inns of Court. This institutional setting no doubt strengthened their confidence in common law methods and approaches.

On the constitutional question, England has a constitution, but one that is not codified. The constitution relies on many uncodified "conventions" that these conventions and their operation resemble elements of customary.

The survival of the House of Lords as a judicial body is a strange historical anomaly. In the 19th century a series of Parliamentary statues transformed the English courts and legal procedures. Although the expectation was that the House of Lords would lose its status as a supreme court, this did not occur. Instead, two "higher courts" appeared: the House of Lords and a new Court of Appeals. In practice, when the House of Lords acts as a judicial body, the "law Lords" direct its deliberations.

Q: What is the personal relationship between Parliament and the common law courts? Japan has a well-developed and codified system. Japanese laws are mainly made by civil servants and judges, who themselves are civil servants. Judges primarily work at the Ministry of Justice and draft laws along with many others. There is little conflict of interest between judges and lawmakers. How does this situation play out in England? Are lawmakers and judges totally separate?

The key here, I think, is to emphasize the relative lateness with which England developed the type of professional civil service that is such a familiar part of Asian history. It was not until the 19th century that a professional training program for government service came to be adopted. The first English institution that developed specific training and exams for government service was not the state, but the British East India Company. Ironically, it may have been more common in medieval and early modern English history for judges to serve as royal counselors and to draft legislation. There is a tradition by which specific important pieces of legislation are associated with individual judges.

Q: Regarding the relationship between citizens and the courts, Japan has introduced a jury system as of April 2009. What is your feeling on this development? The model for this system was from the U.S., which uses a common law system.

It is a difficult question because the "jury system" contains so many elements. Historically, there has been a succession of jury systems. Before the late 18th century, English jury trials in criminal cases were very rapid and (by modern standards) quite informal. One jury would deliberate over two to three days and decide dozens of cases. The common law jury was part of a larger system that relied on many unpaid and legally untrained officials - jurors as well as justices of the peace, constables, coroners, and so on.

The major change in the creation of the modern criminal jury trial is the dominance of the proceedings by professional counsel and the importance of the law of evidence and burden of proof. This version of the jury trial can require extreme amounts of time for individual cases. The wealth of the parties and the amount of resources and legal expertise they can bring to a case has a powerful impact on its outcome.

When it comes to the introduction of the jury systems in Japan and elsewhere, I feel the juries themselves are not the issue. The issue is whether the change in procedure will lead to extremely lengthy and lawyer-dominated trials, in which the relative wealth of the parties has a powerful impact on the outcome of disputes.

*This summary was compiled by RIETI Editorial staff.