THE COMMON LAW UNCODIFIED
What could be more amazing to a continental lawyer, who can hardly imagine life without the code, than the discovery that the English common law is even at the beginning of the twenty-first century still uncodified? Before entering into this first of our six differences it may be appropriate to ponder on the exact meanÂing ofâ€?code’ and â€?codification’ (the latter term was introduced by Jeremy Bentham).
Code (codex) is used by some legal historians in the very wide sense of a major lawbook promulgated by the lawgiver or endowed with great authority for some other reason. Thus they refer to great collections of existing norms as â€?codes’, a use of the term that finds some justification in Antiquity, where Justinian’s collection of imperial legislation was called codex.[41] Other legal historians, to my mind rightly, prefer to reserve the term for the great modern lawbooks, such as the Code civil and the Burgerliches Gesetzbuch, because they see a clear difference betÂween the old â€?codes’, which were in reality backward-looking collections of existing texts (albeit arranged in some systematic order, revised and interpolated) and the modern code which is a forward-looking new lawbook, written as one coherent whole and intended to create a new legal order rather than to present a summary and an inventory of the old. These codes are dynamic, and collections of existing material are conservative. I therefore see an essential difference between Justinian’s Corpus or the great canonical collections, beginning with Gratian, which are someÂtimes called â€?codes’, and the eighteenth- and nineteenth-century lawbooks that opened the modern era in Prussia, Austria, France and many other continental countries. Although England has old and venerable collections of Statutes and also some great Acts of Parliament dealing with specific legal areas (Sales Act, Married Women’s Property Act) which could be called partial codifications, the English common law as such and as a whole is still uncodified. The irony of this English aloofness is that one of the most eloquent advocates of codification was the Englishman Jeremy Bentham (d. 1832) (whose defence of modern codes was promptly translated into French and widely read on the Continent). In spite of Bentham’s appeal and the efforts of his pupil Lord Brougham (d. 1868), who as Lord Chancellor wielded political power, the codification of private law was not seriously attempted. Criminal law, on the other hand, got very close thanks to the efforts of SirJames Fitzjames Stephen (d. ι 894). This great Victorian barrister with wide political and literary interests had worked on the codification of criminal law in India, where he was a Law Member from 1869 to 1872, and upon his return to Britain he undertook the codification of criminal law. His project reached the Committee stage in the House of Commons but, because of an untimely change of government in ι 880, never reached the statute book. In 1877 Stephen had published a Digest of the Criminal Law, which could form the basis of a penal code. Consequently the Lord Chancellor instructed him in the same year to draft bills for a penal code (and a code of crimiÂnal procedure). Stephen’s work was introduced into Parliament in 1878 and referred to a royal commission. But, although the Draft Code was widely praised, a change of ministry, as we said, put an end to its author’s hopes (a last sign of life was given in i 882 when the procedural part was announced as a governÂment measure in the Queen’s speech).[42] The thread was picked up again after the Second World War, and a draft criminal code, prepared around i 980, was discussed by the Law Commission, a body of academics and learned barristers that advises the govÂernment, but again the text has failed so far to get on to the statute book, because Parliament cannot find the necessary time to discuss it.In the absence of a code English lawyers have to work with old and recent statutes and case law, which explains, for example, the distinction between statutory and common-law offences, the measure of punishment for the former being based on legislaÂtion and for the latter on tradition and judicial discretion. The Bench is understandably attached to free sentencing, whereas politicians tend to favour punishment imposed by statute: the more statutory offences are created the more judicial discretion is curtailed. A few years ago, in i 996, there arose, for example, a disagreement between Michael Howard, the Home Secretary, who felt the need for a new Crime Bill (with minimum mandaÂtory sentences — such as automatic life imprisonment for violent second offenders), and Lord Donaldson, who favoured judicial flexibility, allowing judges to take into account particular cirÂcumstances and other individual considerations (we shall return to the role of the judges later in this chapter).
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- Caenegem R.C. van.. European Law in The Past and The Future: Unity and Diversity over Two Millennia. Cambridge University Press,2004. — 185 p., 2004