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Published online by Cambridge University Press: 12 February 2016
Law reform is now under consideration in most countries of the world and practically everywhere, the problem of the instruments of this reform arises: should the reform be carried out by the decisions of judges or by statute, and if by statute, must such law be codified?
Common law countries are both attracted and at the same time frightened by codification. This may well be the situation here in Israel, where the common law tradition is still deeply rooted but where there is also a certain tradition in favour of codification.
At any rate, the subject cannot be treated today as it would have been a century ago. The old controversies about the usefulness of codification in the abstract are out of fashion. In England, the fierce attacks of Jeremy Bentham against the common law—“dog law”—have had no influence on the development of English law. On the continent, Savigny and the German Historical School did not prevent the progressive codification of German law nor the adoption in the other countries throughout the nineteenth century of codes inspired by the French model.
1 The term “Statute law” includes here both Acts of Parliament and statutory rules and regulations, the impsortance of which has greatly increased in many countries in recent years.
2 Cf. Semaine internationale de droit: L'influence du Code civil dans le monde (Paris, 1950)Google Scholar; Carbonnier, J., Le Code civil des français a-t-il changé la société européenne? Programme pour une recherche sociologique sur l'influence du Code de 1804 Rec. Dalloz 1975, Chron. 171.Google Scholar
3 The term consolidation is used here in its wider meaning of compilation of existing rules, whether statute law or case law.
4 Feldbrugge, F.J.M., ed., Codification in the Communist World (Leyden, 1975).Google Scholar In the USSR, the elaboration of a vast “Statute book” — in the tradition of the SVOD ZAKONOV — has been recently announced. It will include all the existing codes, statutes and the more important regulations of the Federation as well as of the Republics.
5 Besides, of course, the special situation in Louisiana.
6 See Diamond, A.L., “Codification of the Law of Contracts” (1968) 31 Mod. L.R. 361CrossRefGoogle Scholar, and cf. Farrar, J., Law Reform and the Law Commission (1974).Google Scholar
7 This choice is not approved unanimously. See Hahlo, H.R., “Here Lies the Common Law: Rest in Peace” (1967) 30 Mod. L.R. 241CrossRefGoogle Scholar and id., “Codifying the Common Law: Protracted Gestation” (1975) 38 Mod. L.R. 23; see also the prudent position of the Renton Committee on the Preparation of Legislation, Cmnd. 6053, 1975, pp. 83 to 93.
8 Englard, I., “Li v. Yellow Cab Co.: A Belated and Inglorious Centennial of the California Civil Code” (1977) 65 Cal. L.R. 4.CrossRefGoogle Scholar
9 The Code of Federal Regulations follows the same general schedule.
10 The full title of which is “An Act for Codifying the Law Relating to the Sale of Goods”.
11 There is even a “Code Administratif” — which is the private work of one of the more important legal publishing companies.
12 Cf., Lord Simon of Glaisdale, and Webb, J.V.D., Consolidation and Statute Law Revision, Public Law (1975) 285Google Scholar, and his speech in Farrell v. Alexander [1976] 3 W.L.R., 145, at 159.
13 Fromont, M. and Rieg, A., Introduction au droit allemand, (Paris, 1977)Google Scholar Tome I, Les Fondements.
14 Published in Fenet, , Travaux préparatoires du Code civil, (1830) Tome I, p. 464 ff.Google Scholar
15 Codification has been said to break up the “jus commune” of nations and to promote legal nationalism (David, R., Grands Systèmes de droit contemporain (7th ed., 1978) n. 49 ff.Google ScholarCf. also Hahlo, op. cit. supra n. 7. But it does not appear at the present time that codification prevents unification of the law more than any other system.
16 There are only five sections of the French Civil Code on the law of tort. Case law is of course the major source now.
17 The original name was “Code civil des Français”. It became Code Napoléon in 1807, then again in 1814 Code civil des Français; the name “Code Napoléon” was given back in 1852 by a Decree of 27 March 1852, which was never formally abrogated. Yet the code is normally refered to a “Code civil” in France; the expression Code Napoléon is mainly used by foreign jurists.
18 The original code has only 2281 sections. Two were added in 1975 by the reform of possession.
19 Brankruptcy is reserved to traders in French law.
20 Company law is to be found since 1966 in a statute of 509 sections and in a decree of 309 sections.
21 Even though the German commercial code, HGB, had a sounder doctrinal basis than the French code.
22 As shown by the Swiss, Italian and Dutch examples.
23 According to their nature, the number of the section is preceded by the letters L or R (Loi ou règlement): for instance art. L. 22 or art. R. 54.
24 Décrets n. 78–329 et 78–330 du 16 mars 1978 instituant le Code de l'Organisation judiciaire, Ière Partie législative, 2ème Partie réglementaire Rec. Dalloz 1978, L. 191 ff.
25 History of the Law of England (London, 1938), vol. 12, p. 160.
26 It does not exist with the same intensity in the various common law countries and, on the whole, it is waning.
27 Interpretation of Statutes, Law Com. n. 21 — Scot. Law Com. n. 11, 1969.
28 Cf. Overbeck, Von, “The Role of the Judge under the Swiss Code” in Stoljar, , ed., Coing, H., Zweigert, K., Tune, A., Freienfells, W. Müller and Overbeck, A. Von in collaboration, Problems of Codification (1977) 135–150.Google Scholar The translation is that of Von Overbeck.
29 See supra n. 12.
30 David, R., “Codification à la…” in Encyclopaedia Universalis (5th ed.) vol. 4, p. 652Google Scholar, col. 2.
31 “Precedent under a Code” in Precedent in English Law, (Oxford, 3rd ed., 1977) 227 ff.
32 This technique cannot be used for ever and there will be a time when it will be necessary to remodel the whole code; for a critique of this technique, see D. Martin, Rec. Dalloz 1977, chron. 221, p. 222, note 3.
33 It is significant that three of the most important cases in the House of Lords in recent years have been referred to the law Commission. Thé court has stressed the difficulty but has not been able to give a satisfactory new rule. See: Herrington v. British Ry. Board [1972] 2 W.L.R. 537, about the occupier's liability toward trespassers; Suisse Atlantique Société d'armement maritime S.A. v. Rottetdamsche Kolen Centrale [1967] A.C. 361 and the subsequent cases on exemption clauses; Miliangos v. George Frank (Textiles) Ltd [1975] 3 W.L.R. 758 on debt in foreign money.
34 A Common Lawyer Looks at Codification, Many Laws, Selected Essays (1977) vol. 1, p. 48.
