Codification of Law

The Codification of Law
Author(s): Sigmund Samuel

Source: The University of Toronto Law Journal, Vol. 5, No. 1 (1943), pp. 148-160
Published by: University of Toronto Press
Stable URL: http://www.jstor.org/stable/824515
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THE CODIFICATION OF LAW
N a wide aspect of the law, there are two systems

There is the jus non scriptum, sacred to English lawy
the jus scriptum, equally sacred to civilians. We do not
with the question which of the two systems is preferab
propose to enumerate the advantages and disadvantage
other. All this has been done by competent legal writer
enumeration of one writer leave a certain argument u
certainly made up for by others. The problem is not a
occupied the interest of legal thinkers and philosophers for
Long before the problem was subjected to conscious sc
the struggle between the two systems was in progress v
two thousand years or more. It simply happened that a
its chief priest, or later its king, should decide litigiou
according to his own sense of justice, without being b
rules, while another tribe, aware or not of advantages o
one or the other method, preferred to have laid down
according to which justice had to be administered. Of
changed; not only as far as different tribes are concern
the legal armoury of one and the same tribe. So too, r
down and fixed in advance, were regularly applied by
led in many cases to the creation of judge-made law wh
or supplemented, or even altered the fixed rules.
What we propose to investigate is the question whether t
are really in definite contrast, whether one without the
to satisfy permanently the legal needs of mankind. W
the question whether these systems are not bound to tak
turns like day and night, winter and summer, rain and sun
its function which can, however, be achieved only by fo
Or is it not the case that not by following each other, b
by side and permanently working together, their destin
each other, so as to prevent them from becoming sterile?
Within the limited space of this article we cannot aff
the problem in the light of Hegelian ideas of history
bearer of reason and not individuals, on which basis he
including the products of law-making agencies, as exp
of an evolutionary dynamic and historic process which take
antithesis, and synthesis. We might try to substitu
148
THE CODIFICATION OF LAW 149
uncodified system of law, and for antithesis th

synthesis some reasonable and workable combin
limited space we can also only allude to Sir
describing the movement of the progressive
Spencer's doctrine which regards civilization, as
of a biological organic evolution.
Similarly, we can only allude to the essential
these doctrines. Is justice changeable, or is i
Consequently, when changes of positive rules of
is the query whether JUSTICE ITSELF HAS CHANG
perceived that the former rule of law did not a
or materialize what is regarded as EVERLASTIN
unchangeable?' This difference might have
leading to the development of the two systems, an
sion in the aims of the two systems. One to b
complete as it possibly can be, whereby, at leas
assumed that such rational system can be of per
decide exactly the case lying before the court
down a rule which goes further than required
we wish to investigate the problem not from
philosophical angle, but from an apercu of the
civil codes, and the two European systems havin
The first of these civil codes is that of Fran
Before dealing with it, let us glance at earlier d
particular point of our investigation. Until 17
to make so-called arrets de reglement-i.e., to m
which went beyond the litigation in question, an
cases. Such arreAts were regarded as having bind
By the Act of 1790, courts were deprived of th
rdglementaire was reserved for the executive po
of separation of powers. In a word, the judge
not to make the law; to apply the law only
power2 was withheld from the courts also by the
lit is commonly said of certain cases that "the law

mean that until this time justice itself was different,
were decided differently were correctly decided accor
later cases correctly decided according to a new justi
is always the same, that it is only sometimes not perc
the earlier judgements did not amount to satisfy the requ
unchangeable concept of justice?
2Pouvoir reglementaire, which was regarded as legis
150 THE UNIVERSITY OF TORONTO LAW JOURNAL
defendu aux juges de prononcer par voie de disposition generale et regle-

mentaire sur les causes qui leur sont soumises." The legislators attached
such importance to this rule that it was considered necessary to put judges
who acted contrary to this rule under penal sanctions, by art. 127 of the
Criminal Code.3 This was the result of the attitude taken by the French
revolution, which held that the statute must satisfy everybody; and the
right of courts to create law seemed to be the greatest danger threatening
those social classes whose representatives or exponents were, as a rule,
not members of the bench, or at least were not so before the revolution.
This is very similar to the attitude taken by the Roman plebeians when
they sought to make laws known, and to end a situation in which law was
a secret science, known only to pontifices and patricians. Under the
tribunus plebis, Terentilius Arsa, the plebs revolted in 462 B.C., and, after
years of struggle, the movement led to the enactment of the xII Tables,
in or about 450 B.C.
In both of these cases, the impulse toward codification sprang from
the fear that the contrary system, of a free finding of law, was bound to
favour those social classes from whom the judges were recruited. The
basic idea in the minds of those who favoured the new order was that it
was feasible to build up, upon rational grounds, a workable code that shou
be able to foresee and provide for all possible legal problems that migh
thereafter arise. We should be rather daring were we to attribute to th
earliest reformers that sharp perception of detail that came with the con
troversies of Thibault and Savigny in the early years of the nineteenth
century and with the tendencies of the historical school of jurisprudence
We simply note that when we examine the story of codification and non
codification we must, if we are thorough, go very far back for our original
protagonists.
Our topic is illustrated by the rule of interpretation contained in art.
of the French Code, which says that "a judge refusing to decide a case under
the pretext of silence, obscurity or insufficiency of the statute can be perse-
cuted as guilty of denying justice." There is in fact a correspondin
section in the Criminal Code.5
The legislator could not overlook the fact that gaps and deficiencies
3Art. 127. "Seront coupable de forfaiture, et punis de la degradation 1. Les juges,
les procurateurs generaux et . . . qui ce seront immisces dans 1'exercise du pouvoir
l1gislatif, soit par des reglements contenant des dispositions l1gislatives soit. .. ."
4E. Burke, 1729-97; F. K. Savigny, 1779-1861; F. Puchta, 1798-1846; Sir Henry
Maine, 1822-88; J. C. Carter, 1827-1905; 0. Gierke, 1841-1921.
5Art. 185, containing a fine from 200 to 500 francs and an interdiction to exercise
any public function for from five to twenty years.
are unavoidable; and therefore, by art. 4, a duty

for the effective discharge of their task, for which
power must be assumed. This power, however, d
right of giving dispositions generals et reglementair
to other than the specific case to be decided, bu
power to render judgement even should it be ne
mentioned deficiences. Now, the question comes u
to a power of interpretation large enough to com
that the judge can create no law has any longer an
If we distinguish, as we must, between th
create rules for specific cases and the binding
future cases, then we can observe that the Code has granted to
judges the first mentioned power in contradiction to the principles repre-
sented by Le Chapelier and Robespierre, who, like others even after the
creation of the Code, wished to reserve all interpretation to the lawgiver.
But the second power was expressly withheld by art. 5. The judge was
thereafter empowered and obliged to decide even in cases described in art. 4,
but in respect of the given case only. Even the decisions of the cour de
cassation had until 18376 no binding force upon lower courts, neither in
general nor in the particular case. Should a lower court, after its judge-
ment had been twice annulled, give judgement for the third time, in contra-
diction of the legal opinion expressed by the cour de cassation, this operated
only by referring the matter to the legislators and asking for an interpreta-
tion which would bind all the courts. The Statute of 1837 declared that
the cour de cassation in the common session of all its chambers could decide
questions of law with binding force for the specific case only, and only if
the lower court, after its decision has been once quashed, reached for the
second time the same decision. A session of all chambers required the
participation of thirty-four judges.
This development shows how reluctantly and how restrictedly the
legislator gave way. But life cannot be caught like a bird in a cage; and
thoughts in general, and legal convictions in particular, cannot be dictated
and cannot be brought into a state of frozen immobility. The legislator
can certainly order that a judge shall be prohibited from pronouncing his
judgement to be a disposition gineral et riglementaire, but it cannot rule
6There were three periods: (a) L'ancien reginme, until the Statute of August,
1790, during which time every court had the right to create binding law for its
territory; (b) From 1790 until the Statute of April 1, 1837, the cour de cassation was
to "rdferer au legislateur" to solve conflict between itself and lower courts; (c) From
1837, the cour de cassation can impose its legal conviction upon lower courts for
specific cases by decisions taken in common session of all its chambers.
or prescribe that another judge reading the judgement shall not be im-
pressed and convinced by its intrinsic persuasive force. It is not sur-
prising that a decision reached in an assembly of all the judges of the
highest court, uniting the most excellent legal minds of the generation,
becomes, via facti, authority for all courts and for future cases although
not ordered by any rule of law. In fact, courts do not hesitate to follow
legal opinions laid down by the cour de cassation, which is often referred to
in the literature as cour regulatrice, because it does not replace the judge-
ment of the lower court, but annuls and gives regulation how to proceed.
The example has led to the consequence that even judgements of the cour
d'appel have been given authority owing to their intrinsic value. And so,
as a victory of thought over the rigid letter, and of intellect over executive
power, we find free citation of authorities in all editions of the Code. We
find also regular periodical publications of court decisions.7
The second modern European Code, in order of time, as far as the
rules we are dealing with are concerned, shows in statu nascendi much the
same features as the French Code, although the circumstances of its
creation were different. There was no revolution; the Austrian Code
was created in 1811 in a quiet atmosphere, and was .not insisted upon by
any "lower social class." There was no military dictator in the chair of
the committee deciding on opposing legal views. A judge of high reputa-
tion and professor of law, a member of the nobility, Freiherr von Zeiller,
was the head of the committee; and the committee was composed of legal
practitioners and teachers of law. Nevertheless the Code came to similar
conclusions in the particular questions we have already noted. S. 7 of
the Austrian Code says that if a case cannot be decided according to the
letter or the common sense of the statute, then an analogy must be drawn
from other provisions in the statute, and, should the doubt not be removable
by these means, the natural rules of law must be applied, after careful
consideration of all circumstances.
Freiherr von Zeiller said, in his commentary, that even though it was
not the task of the lawgiver, in private-law legislation, to promote morals
but rather to secure justice and free enjoyment to. one's rights, nevertheless
it was necessary that private law shall be governed by respect for human
dignity, equity, good morals, and religion.
The French revolution, based on proletarian ideas and strongly opposed
to religion, reached the sam? conclusion as the strongly bourgeois Austrian
committee, which was much devoted to religion. The only explanation to
be offered is the strong aidherence to natural-law ideas, which made both
7Dalloz, Receuil periodique d'arrits, and others.
THE CODIFICATION OF LAw 153
believe that a complete system of law could be created and m

unchangeds although art. 4 of the French Code and art. 7 of th
Code disclose some timid doubts as to the perdurability of such
S. 12 of the Austrian Code, declaring that "judgements giv
ticular cases never have the force of law and cannot be extended to other
cases or other persons," turned out to be quite as unworkable as the simila
rule of French law. The president of the supreme court ordered, in 1872,
by an "Instruction," which was consented to by a special order of th
Emperor, that should one of the chambers of the court so decide, it
judgement, by which questions of principal importance referring to privat
law or civil procedure were disposed of, should be entered in a so-called
"Repertory of Decisions." The effect of such entry was that should
one or the other chambers of the supreme court wish to deviate from
former decision entered in the repertory, this could be done only upon
a decision of a so-called fortified chamber of fifteen judges. A decision
rendered by such fortified chamber was to be entered into a so-called
"Book of Precedents" (Judikatenbuch) and a decision so made and
recorded could be deviated from only upon a decision of a chamber of
twenty-one judges. This binding force is, however, decreed only fo
the chambers of the supreme court, and not expressly concerns the lowe
courts. Nevertheless, we can see, as we see in regard to France, tha
code editions and text-books are full of citations of court decisions; ther
are official law reports, to which reference is made in pleadings, in judge
ments, and in legal literature.
The third modern Code, in order of time, is that of Germany, which
came into force in 1900. It does not contain any rules regarding th
law-making power of judges or the interpretation of legal rules.9 There
is neither a permission for nor a prohibition against judges making rules
of law. It is left to legal science to work out rules and methods for dealin
with questions on which the code is silent, obscure, or insufficient. Jose
Kohler1o has dealt brilliantly with the problems of interpretation of the
statutes in matters of private law. He declares that interpretation mean
finding the spirit and meaning which is hidden behind the words used-no
8The Code of Frederick the Great of 1794 was created with the intention that
"all contingencies shall be provided for with such careful minuteness that no possibl
doubt could arise at any future time." Judges were not to have any discretion as
regards interpretation, but were to consult a royal committee as to any doubtfu
questions, and were to be absolutely bound by its answer.
9Rules for interpretation of contracts are given in ss. 157 and 242, but no dis-
positions for the interpretation of rules of law.
'0Lehrbuch des biirgerlichen Rechtes (1906), vol. I, pp. 110-34.
the spirit and meaning of what the legislator wished or intended to

express, but what it has expressed in fact. So he contrasts the quest for
an individualistic interpretation with the quest for a sociological interpre-
tation. In the same way, he distinguishes in our thinking the individualistic
function from the sociological one. What an individual is thinking is
to a large extent not his own mental work but something reflecting all
the results of the mental strife of past centuries, with infinite connexions
in time and space, and hidden antecedents and consequences of which the
individual is not aware.
The legislator is a man at once the creature of his time and the heir
of past centuries. He is saturated with the ideas of his time and with the
culture surrounding him. These are the essence of a sociological process
Therefore he concludes that statutes are not to be interpreted accordin
to the thoughts and the will of the lawgiver, but sociologically as a produ
of the people of that past age to which the lawgiver belonged." Kohler
makes it clear that the law is much wiser than the lawgiver, and that th
lawgiver is frequently not the right interpreter. In Kohler's view, it is
by no means necessary or even desirable that isolated rules of law shall
have one meaning, and one meaning only. They are designed to provide
for a multitude of contingent and unexpected situations. It is the task
of legal science (Rechtswissenschaft) to choose, from among all possible
meanings, that which is best fitted to deal with present and actual problems
in the law. He repudiates the idea that the interpretation of law is, or
can be expected to be, static. That interpretation must follow evolutionar
trends, cultural, social, and economic. Kohler therefore denies in toto th
existence of one single, eternally right, interpretation for any given rule of
law.12 He regards the judicial interpretation of legal rules as a sourc
of customary law, to which he attributes the force and power of alterin
the law, as well as filling gaps of the system. In accordance with th
general concept of civil law, he recognizes this power of judge-made law
only if it is not exercised in respect of an isolated decision but is the resu
of a continuous practice. Jurisprudence is to him as to all civilians, "La
manikre dont un tribunal juge habituellement telle ou telle question."
And now we turn to the fourth, and most admirable creation of modern
private-law codification, the Swiss Civil Code, which came into force in
1912. This contains, in s. 1, the following rule: "The statute applies
to all questions of law on which it contains any provision by its wording
or interpretation. Should it not be possible to derive from the statute
rule, the judge shall decide according to customary law, and where such
'"Observe the differences between Kohler and Savigny.
12Compare Dean Roscoe Pound, Wendell Oliver Holmes, and Eugen Ehrlich.
is also lacking, then according to a rule which

In this he shall follow the approved doctrine
The Swiss Code has been influenced by t
states-France, Austria, Germany. Yet, wh
that little republic, what do we find? We hav
in French and Austrian civil codes, against ju
and we have even seen penal sanctions, in Fr
practices. We have seen that the German Civil
The Swiss Code, however, brings back custom
as sources of a living law, and reinstates the
it must be remembered, is contained in a code in
dox opinion, codified law and judge-made law
tion-still stand, as the old saying has it, as w
What is the lesson to be drawn from these
Have we not to draw the conclusion that nei
exist forever for itself? We see that in statute-law countries the trend
goes towards giving wider and wider space to judge-made law, and
common-law countries the trend goes unmistakably towards codificatio
even against the strong opposition of persistently rigid and ultra
conservative practitioners. It does not diminish the truth of this sente
that, in some countries, the power granted to judges is given not ope
as law-making power, but is disguised as judicial interpretation only,
that, in some countries, the power extends to the particular case only,
in others to creating general rules, and finally, in some, to a mixed system.
That means that, in certain cases, the judge-made rule applies only to t
particular case, in others to cases in general according to the jurisdictio
level of the court giving or creating the rule, and according as to whet
the decision was reached in a normal chamber, in a fortified chamber,
in the common session of all the chambers.
In our analysis of European systems we left one to the last, which is
not a code-law system, but is based on custom. It is the Hungarian law
which, in its historical development, is very much akin to English law. The
differences can be seen in the fact that in Hungarian law a rule pronounced
by court becomes binding, not by its own force, but by virtue of an assump-
tion that, when followed by other courts, and so gaining a certain stability,
it proves the public legal conviction. So the judgement does not create
law, but is a proof of its existence when constantly followed. This is
the historical view; but the modern law is familiar with the idea of a judge-
ment creating law uno actu, as we shall see.13
13Compare R. Pound, "Common Law and Legislation" in 21 Harvard Law
Review, 383. "Today we recognize that the so-called custom is a custom of judicial
In relatively early times, it was unconsciously felt (we do not wish

to say that it would have been understood) that one of the two methods,
alone, could not satisfy forever the orderly administration of justice. As
early as 1498, a statute of the national assembly in Hungary ordered a
compilation of private law rules to be made, taking regard to "existing
statutes, orders and accepted customs." The highest judge of the country,
Stephen Werb6czy, was entrusted with this task, which was discharged in
his work Opus Tripartitum iuris consuetudinarii regni Hungariae. The
national assembly delegated ten members, who examined and approved the
work, and it was submitted to the king for consent, sealing, and publication.
The king in fact consented, but did not seal and despatch the lawbook to
the single counties, which ceremony was at that time required by the
constitution1' as means of publishing statutes. So this work never achieved
the character of statutory law, but it gained general recognition by its
inherent value, and became binding by custom. It was later quoted, even
in statutes, simply as Werbaczy's Tripartitum. But with this effort the
co-operation of the judges in the creation of law was not supposed to be at
an end. It continued, as changes in social, cultural, and economic structure
of the state required it. For more than two centuries the Tripartitum was
operative, and, parallel with it, there operated the law-making or law-finding
activity of judges. In 1769, on order of the Empress Maria Theresa, a new
compilation was made,15 comprising the results of the judicial decisions
since Werboczy. There was, again, no intention to stereotype the collected
rules, and to exclude further sound development; and this, in fact, went on
until 1861, when a so-called Judex Curial Committee worked out "Tem-
porary Legal Rules""' which were again accepted by both houses of
parliament, and consented to by the king; but again there was no formal
sanction, no enactment, and no publication. This codification operated
by its intrinsic persuasive force, and law-making or law-finding of judges
decision, not a custom of popular action. We recognize that legislation is the more
truly democratic form of lawmaking . . . it is a more direct and accurate expression
of the general will."
14The "Bulla aurea" of 1222, very similar to the Magna Charta as to its contents
as well as to the circumstances of its creation, was promulgated only seven years after
the English charter.
15Planum Tabulare sive Decisiones Curiales.
"6These rules were called "temporary" because they were intended to be in use
only until the completion of the Code, the preparation of which started at the same
time. The similarity between the development of English and Hungarian private
law is vividly described by Professor K. Szladits: "A Comparison of Hungarian Cus-
tomary and English Case Law" in 19 Journal of Comparative Legislation (3rd series),
X, p. 165.
still continued. A statute of 1881 organized t

courts of appeals and of the highest court, the
similar to that of the French statute of 1837 and of
of 1872, by fortified chambers and common ses
with binding force for the same court only, or f
case might be. This can be described best as a
compilations or "restatements" were combined an
judicial decisions. Since 1861, the codification of
the law made steady progress in Hungary, but t
interpreting and supplementing rules of law were
tions.
We must mention briefly the legal system of C
most advanced and most highly cultured of stat
functioning administration of justice. The newl
tained Austrian and Hungarian law respectively
territories which previously belonged to the
however, set up a special ministry, with the sing
the law. In many fields of law, admirable result
the short period in which the ministry function
a Civil Code were in a very advanced stage when t
by the tragic events of recent years. This much
that the draft of the Code is based on the system of
influence in interpretation, in some cases in law-
the valuable co-operation of courts in the further d
When we look at English law, in the light of a
shown, we find that the trend in the direction
means a small affair. There were very early statu
important problems of private law. To mentio
the rules of the Magna Charta (1215) concern
between chattels and land, the order of enforcing de
and surety, and the rules in respect of money-len
many statutes, from the fourteenth century
important rules of private law.'" It is obvious
certain inclination toward creating statutory law
tions of the nineteenth and the four decades of
show the growing tendency of this inclinatio
17Very clear information in concise form on Czecho
by Jaromir Sedlacek, "La Codification du droit civil en T
de la Socite' de Legislation compar'e, 1923-5, part referri
x8Regarding Uses, Wills, Marriages, Limitation of A
Distress, Landlord and Tenant and many others.
11
covered almost the complete field of the mercantile law, as to which it is

generally recognized that codification is desirable. It must not be over-
looked that the codification of mercantile law means essentially a codifica-
tion of a very substantial part of the law of contract,'" at least of commercial
contracts, and these make the greatest part of contracts. Of course; accord-
ing to the basic principles of English law the codification makes only a
sound basis for a superstructure of judicial decisions. But English statu-
tory law, created in the nineteenth and twentieth centuries, covers also
large fields of family law, the law of succession, and the complex of the
laws of property, administration of estates, land registration, land charges,
and the law of trusts.
We think that, in the light of the examples we have shown, there is t
be drawn the conclusion that all these legal systems20 are tending toward
a synthesis, i.e. towards conditions under which the codified law shall
make the basis and the judge-made law a sort of superstructure. Th
is a fabric which is not organized identically in all the systems, but, viewed
from our angle, these systems have similar effects. The importance of
the judicial law-shaping effort is not less when there exists a codified law
than in the contrary case, because judges are able to follow day by day
the changes occurring in social, cultural, and economic respects, and so
they can be, and ought to be, the best guides for the legislators in their
reforming activities in adjusting codified rules from time to time to th
requirements of life.
An analysis of the reasons which lead almost all legal systems to take
this course that has been indicated would lead us very far afield. It would
however, be a highly appreciated reward for the author should this artic
be an inducement for an exchange of views on this special side of our topic.
At this time one circumstance needs to be mentioned, for it seems to
us to be one of foremost importance. This is that co-ordination of the
different branches of the law can be achieved more efficiently by a planned
and vigilant legislature which takes the initiative than by leaving the shap
ing of the law to the hazard whether a certain problem which may requir
reform will or will not come up in cases and whether soon or after man
years. In most cases, a change in one field of law requires changes i
19Contracts concerning sale of goods, chattel mortgages, conditional sales, bulk

sales, contracts relating to goods in possession of agents, liens, etc. It might be o
some interest to mention that for India a very modern and workable code of the la
of contract was enacted in 1872.
20Turkey after becoming a republic adopted the Swiss Civil Code as a whole.
China and Japan adopted parts from French and others from English, Swiss, and
German law.
other fields, which are organically connected. So

English property law was reformed in 1922-5 nu
of law had to be reformed21 and co-ordinated. L
can be realized in the law-making activities of ju
and as cases arise; and even when a case arises an
a former rule, it can do nothing for the immediate
of the new rule with all other related or connected rules. We see, for
example, that the property rights of married women were not always in full
co-ordination with their contractual rights; and even though women might
be regarded as already fully emancipated as to civil rights, there might have
been a lack of co-ordination as to the rules of criminal law or of the law of
torts. The rule that crimes committed by a wife in the presence of her
husband are presumed to be instigated by the latter was eliminated obviously
because the legislator, in accordance with the accepted principle, appro-
priated to women legal independence; and yet the rule was maintained in
so far that a defamatory declaration made by a husband to his wife regarding
a third person is not to be regarded as publication-i.e., not as communica-
tion to an independent and different person.22 There is also the rule that
a wife cannot sue her husband in tort, whether during the marriage or after
divorce23 although the liability of the husband for the torts of his wife was
abolished by the Married Women and Tortfeasors Act, 1935. It is certain
that co-ordination is one of the main aims of English legislation.24 There
is one problem which occurs to us when reflecting on co-ordination of rules
of law. According to the Sales of Goods Act title to property passes to
the buyer regularly when the contract is made, and yet he has no rei vindi-
catio, but action in damages only.25
21Agricultural Holdings Act 1923, the Benefices Amendment Act 1923, the
Settled Land Act 1925, the Trustee Act 1925, Administration of Estate Act 1925, the
Land Registration Act 1925, and the Land Charge Act 1925.
22Wennhak v. Morgan, (1888) 20 Q.B. 635. This rule has not been affected by
the Married Women and Tortfeasors Act, 1935.
23Phillips v. Barnet, (1876) 1 Q.B. 436.
24Vide the different Mercantile Law Amendment Acts, further the interdependence
of different acts referring and co-ordinating their own rules with rules contained in
other acts. Vide, e.g., the Master and Servants Act and the Criminal Code, the differ-
ent "liens acts," and the Bankruptcy Act; Workmen's Compensation and Fatal Acci-
dents Act; the Landlord and Tenant's Act and the Distress Acts.
25Continental legal systems partly deny title until actual transfer of possession
including brevi manu traditio or constitutum possessorium, but nevertheless give a
claim for specific performance with a right for seizure if goods are available with the
seller; the claim for damages is only secondary. There are, of course, exceptions
which cannot be dealt with here.
There is another thing than the co-ordination of rules of positive law

to be considered,-and that is the co-ordination of the ideological base
upon which the single branches of law arise. In England, until 1823, a
fully feudal law of real property, and from this time until 1925 a partly
feudal law of real property, coincided with legal institutions strange to
feudal ideology like shares, banks, bills of exchange, bills of sale, and other
institutions created by modern life. At the same time, illegitimate children
were in the same legal position as they weie in archaic law. We mentioned
purposely legal institutions which are in no immediate connexion with
each other, because in the case of related matters the need of co-ordination
hardly requires justification. Legal branches more remote from each
other do not bring home to our mind so easily the necessity for co-ordinated
ideology, but looking deeper into the legislative technic we can see as well in
English as in continental statutes very frequent references to other acts
or rules of law and determinations how the other rules will be affected or
how they have to be altered with regard to the new act.26
No legal system has achieved-perhaps no legal system will ever
achieve--its goal in a single, complete, all sufficient ideology, permeating
all parts of the law; but this goal lies at the far-off end of law-making, and
we must do all that lies within our power to attain it. Two paths there are
that lead in that direction. It may be that we can proceed more quickly
along the path of legislation-of codification; but we travel,' as it were,
in both paths; and the other way may sometimes be safer-via trita, via
tuta. The two paths may perhaps, and herein is our thought of synthesis,
blend into a highway, that the just may walk therein. Legislation, codifi-
cation, the speedy vehicles of rights, are followed and supplied-nay, some-
times are led and protected, by the carriers of the old truths, the decisions
of those who can interpret the wisdom of the ages..27
SIGMUND SAMUEL
School of Law, University of Toronto.
261nstances of extensive co-ordinative measures are the last chapter of the Swiss
Code; the special statute, amounting to 218 sections, with which the introductory meas-
ures in respect of the German Code were enacted; and the Hungarian special statute
by which, in 1915, the new code of civil procedure was introduced and its rules
co-ordinated with all related matters.
27Vide A. V. Dicey, Law and Public Opinion in England (1930), lecture xi, sec. 2,
on the effect of judge-made law upon parliamentary legislation in connexion with the
property rights of married women.

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The Codification of Law

Author(s): Sigmund Samuel

N a wide aspect of the law, there are two systems

uncodified system of law, and for antithesis th

lit is commonly said of certain cases that "the law

defendu aux juges de prononcer par voie de disposition generale et regle-

are unavoidable; and therefore, by art. 4, a duty

7Dalloz, Receuil periodique d'arrits, and others.

believe that a complete system of law could be created and m

the spirit and meaning of what the legislator wished or intended to

is also lacking, then according to a rule which

In relatively early times, it was unconsciously felt (we do not wish

still continued. A statute of 1881 organized t

covered almost the complete field of the mercantile law, as to which it is

19Contracts concerning sale of goods, chattel mortgages, conditional sales, bulk

other fields, which are organically connected. So

There is another thing than the co-ordination of rules of positive law

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