Comparative Law and Comparative Legal History: Analytical Essay on Common Law

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Introduction

Common law as we know it, also known as case law, can be defined as the system of law that is based on judges’ decisions and on customs rather than on laws that are written. In other words, it is comprised of a set of unwritten laws based on precedents recognized by the courts. It is also important to note that it remains a source of the UK’s unwritten constitution. Its purpose is to create order for constant principles to be applied so that similar facts in different situations or cases produce a similar outcome. In relation to this, judges are expected to make future choices that will guarantee consistent treatment relating to binding precedent. This is especially relevant when each party in a specific case disagrees on the legality of particular laws and when following past reasoning. This is known as stare decisis. Moreover, common law differs immensely from civil law, as the latter is more of an inclusive, codified set of legal statutes that are made by legislators. The purpose of civil law is to create order and decrease any bias as it is frequently updated. With all this said, it is important to understand how and why codification in the common law is the antithesis of what the common law tradition is all about. This paper will focus on this point by first looking into comparative law as a base to then go on to analyze and compare the English and the American jurisdictions, which will then lead to understanding codification in relation to common law.

Comparative Law and Comparative Legal History

Comparative law looks into comparing the legal systems of different countries, and even the differences within a nation itself. This could also be done on a large or smaller scale throughout the world. The main method to implement this comparison is called macro comparison. Here, instead of putting all of one’s energy into a single concrete problem and finding its possible solutions, research is made to handle legal materials and procedures to resolve disputes (or the roles of those engaged in the law). Its main goal is to acquire knowledge, distinguishing common from civil law. In fact, when looking at the various universal legal systems, many solutions are found, much more than one person could find on their own. That is the real advantage of this system. This method looks at all ways of settling disputes, contrary to the micro comparison approach, which looks at specific legal problems. Comparative legal history could be seen as equally important to define, as it is viewed as the metamorphosis from one tradition into another over time. This is related to ways of approaching the law and how different nations do this. Moreover, this is an important notion to know, especially since the comparison and the evolution of the legal jurisdictions of the two chosen countries have impacted the way their system is today, and what happened as a result of them being affected by codification. The main aim of this concept is to look at the changes that has happened over time, witnessing how traditions and assumptions have guided a legal system and how it has been questioned and reformulated in the long run.

In relation to this, different theories have been developed in order to be discussed regarding codification. The first is the most conventional and simple approach in comparative law that looks at codification and states that it is historically and geographically widespread in the civil law system. In other words, this theory looks at common law as uncodified, since it is based on case law and jurisprudence. This theory would then support the idea that codification is the antithesis of common law. Another theory contests the clear black and white difference between common and civil law as discussed in the simple thesis. Here there is the idea that codification exists in both common and civil systems, but that it doesn’t exist to the same extent. Getting deeper into this notion, some theories see more and more codification in the common law system and view civil law leaning more and more towards judges being more active in decisions. They are therefore leaning towards both legal systems functioning effectively while using codified laws. These theories can somewhat make one doubt the notion that codification and common law do not go together. In fact, these theories clearly show that there is not one correct way to think about this, as they all somewhat contradict each other. One must look at the legal history of each nation to fully be able to compare it to another and to understand its relation to codification. Advocates of codification in the common law argue that it would increase the legal macro comparison as discussed above and since codification is what mainly stands out from the difference between common and civil law. Also, looking into common law, the history of specific countries could be relevant since there has been debates over a European civil code in the past, for example. Once again, codification can be seen as relating to clear and structured regulations and set rules about specific topics that are comprehensive. It relies on a physical code that has authority and needs to bind judges to that code while also giving them the liberty to interpret and fill in gaps where needed. The next part of this paper will now analyze the legal history in relation to codification attempts in Britain and then in the United States.

The United Kingdom – Focus: England

The UK follows the common law legal jurisdiction, therefore the decisions are related to judges, and precedent, meaning its motion is constantly changing. With that said, the thought of having a civil code within the common law prevailing system in England was considered for the first time during the reign of Henry VII, although it did not amount to much. Important figures such as Bacon, Sir Matthew Hale, and William Blackstone have attempted to change the legal system, but again no practical reforms were made. One reason why the efforts failed is linked to the idea that many in the English Parliament were conservative and did not want to deal with big reforms, as this was a political issue. As mentioned above, codification has been debated, and that for centuries in England. The works of Jeremy Bentham most specifically (one of the most important advocates of codification in many parts of the world) moved this idea along toward a more theoretical standard. It is important to note that even though codification failed, it is a significant part of the country’s history, and in turn also explains the relationship between codes and common law. The first reports of codification in the UK have been seen around the 1900s. Many were concerned with the issue that commercial laws were not accessible to everyone because of how large and confusing they were. Because of these worries, codification can be found in a few pieces of the UK legislation, like the Sale of Goods Act 1893. Since it used to be overseen by jurisprudence, English commercial law has drastically changed because of this, and these codes started to influence commercial law by providing a base. The first UK code arrived with the enactment of the Arbitration Act 1996. The purpose of this act was to be clear and representative of the main principles of English law of arbitration in a logical way that made sense. In fact, the goal was also related to fixing and clarifying problems that were in the more traditional English case laws. In addition, this act was deemed to have improved London’s appeal, as a center for arbitration. Another significant piece of codification in the UK was the Tax Law Rewrite, which had the goal of consolidation. It was significant because codification was clear, as there were titles and headings. It was put into place after how irritating and difficult it was to understand tax laws before 1995. In addition, the Companies Act is the newest piece of code in the UK, which came into force in 2007. Here, there was the need to modernize company law (which used to rely on 19th-century bases) and to keep up with other laws. The Companies Act is the most comprehensive one as it includes over 1500 sections and 8 schedules. With all of this said, England was still considered to have given great contributions toward codification. One important feature to notice is that within the common law system of the UK, British India was successful at codification, as it was argued that the English wanted to test out the civil system there first. Despite this, the UK can be seen as a concrete example of how codification is the antithesis of common law, as codification did not predominate the legal system.

The United States of America

Like the UK, the United States follows a common law system. Codification in the States began around the 1600s and the development into producing codes were seen less than 20 years later. Within colonial laws, the state of Massachusetts had developed a code, which was one of many other appearances of codes, as there were a lot being produced in the colonies and inspired by that main one. After the Declaration of Independence in 1776, the law showed itself as confusing and did not make much sense, since it included colonial laws, English laws, and some laws of new states. After the American Revolution, there was still a lot of confusion and complexity in the law, as it was very difficult to understand. That is why codification seemed to be a plausible solution, with the state of Louisiana fully becoming a civil law state. In fact, since the latter has been subject to French and Spanish settlements, the French codification had largely influenced Louisiana. In relation to this, Livingston (a New York lawyer) had written a civil code, which was inspired by the Romans and the French. This code was comprised of single articles and was very comprehensive. Throughout the States, there were huge efforts for standardization of a legal system across the country, however, Louisiana remained codified. This in itself is a prime example of a mixed legal system, perhaps even raising questions about whether common law and codification are two separate concepts or if they can coexist. Furthermore, it is important to note that the United States had early thoughts of codification as a legal reform. In fact, it started to be apparent in South Carolina as a working legal framework, however in the end, codification failed despite the growing efforts and the codification movement moving stronger and having more support across the whole country between the 1930s and 40s. Massachusetts was a prime example of the encouragement toward a codified system of law. Individuals were so keen on having a system of law that was clearer that they supported codification in the common law. Their intention was not to completely erase the common law system, but to include some kind of codification, however ultimately, the task was rejected. Moreover, in the state of New York, the idea of codification had spread, and some success could be found here. Perhaps the most important figure in the American efforts towards codification is David Field, who was a practical lawyer (as he enacted a proposed civil code for many western states), and who operated in line with Bentham’s works as seen above in the UK. In fact, arrangements had been made for the New York constitution to include requirements allowing common law codification. Despite these tangible efforts, the Civil War led to a significant decrease in interest in codification after 1865, as there were bigger problems people needed to deal with. Since codification was slowly dying, the more traditional common law rules rose in importance once again. Some argue that the work towards a codification was not for nothing and that the success rate was impressive when looking at the number of actual enacted codes. There has been more success here than in England, for example. The arguments above all summarize why one would think that codification is the antithesis of common law since most efforts that were made to codify did not work out in a common law system like the United States. The main exception was Louisiana, as per its unusual history and its uniqueness, which allowed it to adopt a civil/codified structure. One could perhaps even argue that it shows there is opportunity for the success of a codified system in a common law country.

Quick Comparison

In the end, the United States saw more practical results than the United Kingdom in terms of codification, since they saw some actual enactments of civil codes (and of course Louisiana). The latter had the influence of Bentham, who was a theoretician, while the US received Field’s weight, who was more of a practical person. These two figures and their values showed up and reflected the way codification tried to make its way in the common law system in each country. On the other hand, both countries experienced a wave of desiring a codified system as a result of confusing laws that were dominating, both failed, and both have exceptions (for example Louisiana in the US, and British India in the UK).

Codification and Common law – Failure?

With all the information discussed above, one can see that despite the efforts by the English and the Americans, codification failed overall in their common law jurisdictions. In other words, one can state that codification is the antithesis of common law in general, even though there has been some success regarding implementing codes (the state of Louisiana for example) in the two common law countries analyzed in this paper. Other arguments as to why codification did not work out in common law legal systems include that the application of common law methods to the interpretation of a code would put a stop to the law’s development since common law is always changing and evolving. This idea states that codes would disrupt the traditional legal sources in the common law and change the way of solving problems. The real difficulty would be when the code does not pertain to a specific issue (in other words, no answer in any article), whereas in common law, the solutions are found from judges and jurisprudence. Another difficulty of codifying principles and norms that are originated from judge-made law is related to the notion that judge-made law represents a legal norm, which is complex, and so applying a logical, organized and analytical code will be hard since it does not fit easily within the common law structure of doing things.

Conclusion

Finally, the main reason there is the idea that codification is the antithesis of common law is directly related to the facts discussed throughout the paper. In other words, one can see the determination, energy, work, and struggles of attempting a codified set of laws in countries like the United States and the United Kingdom, and how they have failed, having common law prevailing. One can argue however that there are exceptions to this rule, as codification was able to break through a widespread common law system, such as the state of Louisiana in the United States or even British India. Over the world, other exceptions are present, such as the province of Quebec in Canada, a widely spread common law country. This moves forward the idea that common law and civil law are not so far from each other after all.

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