OPPOSITION TO CODIFICATION
9 The codification movement spread throughout Europe from the eighteenth century. Codes are now a source of law characteristic of the legal system of the various European countries, apart from England, which even now has not got beyond the stage of setting up a law commission to study the problems a codification of the Common Law would present.
At first sight this anomaly is the more surprising, as one of the most eloquent exponents of the principle of codification was an Englishman5Jeremy Bentham (d. 1832). The difference between the English and the European approach is to be explained largely by the preponderance of case law as a source of law in England, as well as by suspicion among the English ruling classes of all codification, which tended to be associated with ideas of radical or even revolutionary reform. All the same, on the European continent too the codification movement encountered opposition: in Germany it gave rise to a celebrated controversy between A. F. Thibaut (d. 1840), who in 1814 published Uber dieNothwendigkeit eines allgemeinen biirgerlichen Gesetzbuches fiir Deutschland, and F. C. von Savigny (d. 1861) who in the same year replied with a publication criticizing the idea of codification, Vom Beruf unsrer ffit fiir Gesetzge- bung und Rechtswissenschaft.All codifications have advantages and disadvantages. Among the advantages are (i) legal security: a code contains the whole of the law. Any rule which is not in the code or which contradicts it is invalid. The text of the code takes precedence over legal doctrine (which is often divided) and case law. This situation is entirely different from that which prevailed before the codifications, when there was a jumble of legal authority: a complex and sometimes incoherent body of customary rules (some of which had not even been set down in writing); diverse and contradictory learned opiÂnions; judicial decisions, from different countries and several centurÂies.
(ii) Clarity: the ability to ascertain the content of the law.'4 A code deals with the whole of a subject systematically, in language accessible to non-lawyers. These qualities are an important advance from an earlier stage, at which law was written in obscure technical language, often in a Latin unintelligible to any non-initiate. (iii) Unity on the scale of a state, kingdom or empire. This is to be,* See section 70 below. contrasted with the inextricable entanglement of ordinances and local customs in the old law.
The main argument against codification is immobility. This criticism was already levelled by Savigny, the founder of the Historical School. A code corresponds to the state of legal developÂment at a given moment and it aims to fix that state so that it will not be changed. The settled text can, at the very most, be the object of interpretation. Now, according to the Historical School, law is the result of the historical evolution of peoples and must adapt itself to that evolution. The fixing of the law by codification causes internal contradictions and intolerable tensions within a society. Every codification therefore poses a dilemma: if the code is not modified, it loses all touch with reality, falls out of date and impedes social development; yet if the components of the code are constantly modified to adapt to new situations, the whole loses its logical unity and increasingly exhibits divergences and even contradictions. These dangers are real, for experience shows that the compilation of a new code is a difficult enterprise which rarely meets with success.
The Kodifikationsstreit was also inspired by ideological differences. The adversaries of codification conceived of law as the result of a continually developing history: they, together with their leader Savigny, were the conservatives. On the other hand, the proponents of codification belonged to the progressive camp: the appeal of codification was to break with the past, further the promises of the future, and smash the ascendancy of judges and advocates.
In this respect, Portalis’ attitude is revealing. As a co-author of the Code civil, he was of course in favour of the idea of codification but at the same time conscious of the risks a code entailed. This explains why the Code of 1804 drew largely on the old law, and why innovations were introduced only with extreme caution; the revolutionary zeal of the preceding years was now tempered. Portalis also had a sense of the dangers of finalizing the law. To prevent petrification of the law, he formulated these principles: a code must not become too detailed, and must leave a reasonable freedom of judgment to assess the individual cases which arose in practice; to reconcile the contradicÂtions between social development and the law settled by the code, it was proper to turn to natural reason; the task of legal scholarship and case law would be to ensure by means of interpretation that the code remained living law. It is in this sense above all that Portalis’ remark â€?with time codes make themselves’ is to be understood.