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Excerpts from K. Zweigert & H. Kotz (Ed.) , An Introduction to Comparative Law ,

Clarendon Press , Oxford ( 3rd edn., 1998 ) , p. 197.

After the defeat of Napoleon England’s external position was one of the
unprecedented strength but internally the nineteenth century started with a period of
serious political and social crisis. The center of economic activity had moved to trade
and industry and workers had increasingly migrated to the cities, but both Houses of
Parliament were still composed of extremely conservative aristocrats, bishops, and
landed gentry. The Continent of Europe, impoverished by Napoleon’s wars, offered a
very poor market outlet for English industry, so that the number of unemployed grew
alarmingly and wages dropped. The landed proprietor nevertheless introduced tariffs
on corn which prevented the import of cheap grain and thus increased the misery of
the people. As starvation, strikes, and Luddism spread, the forces of progress in
England began to realize that political and social reforms were inevitable if a
revolution was to be avoided. The electoral legislation of 1831/ 2, over the opposition
of the House of Lords, gave the middle classes a share of political power for the first
time; this meant that important reforms could be carried through in other areas as
well.The poor law was fundamentally reconstructed, the employment of children was
limited, and the great change was made from protective tariffs to free trade; finally,
through legislative intervention, the legal scene was given the modernization it badly
needed.

The intellectual voice of the age, often called the ‘Age of Reform’ in England,
was Jeremy Bentham ( 1748 – 1832 ), social reformer and lawyer. He was the leader of
the Utilitarian School which scrutinized the traditional institutions of society in order
to determine whether they were appropriate and useful to the central aim of any
social order, namely ‘the greatest good of the greatest number’ Such a school,
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unhistorical in its method and concerned only with considerations of expediency, was
bound to find a perfect butt in the traditional institutions of the Common Law.
Indeed, for Bentham the rules of Common Law, often based on historical accident
rather than rational design, were simply obstacles in the way of major social reform,
and the same was true of the traditionalism of the conservative practitioners typified
by the English barrister whom Bentham savagely criticized. His particular wrath was
reserved for Blackstone whose classical and conservative presentation of the results of
history Bentham rightly found to be wholly uncritical. Thus Bentham became a
passionate propagandist for thorough reform of English legal life, a reform he thought
could be achieved only by comprehensive codification.

Bentham’s views had an enormous influence on English law in the nineteenth

century but his call for complete codification of the Common Law found little
response. Given their practical sense and collective interests, English lawyers could
not tolerate the thought of replacing the Common Law with a code worked out at a
table on the basis of a particular social philosophy. But credit must be given to the
reformist proposals of Bentham and his school for the many special enactments,
especially in the latter half of the nineteenth century., which altered the courts
structure and the law of civil procedure in England and, to a lesser degree, the
substantive law.

At the time, indeed, the English law of procedure presented a picture which
any uncommitted observer must have found in many respects grotesque. There was a
baroque profusion of courts whose jurisdictions sometimes overlapped and sometimes
differed in a manner so complex as to be comprehensible only to adepts.
…….Attempts were made to overcome these inconveniences step by step by a series
of special statutes until finally the courage was summoned up for a great reform of the
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courts structure and the law of procedure, by the enactment of the Judicature Act ,
1873.; it came into force in 1875 and still constitutes the basis of the present situation
in England.

The main thrust of the reform was to transform the courts system. The
numerous independent courts were brought within a single Supreme Court of
Judicature, consisting of the High Court of Justice and the Court of Appeal. The High
Court contains several divisions of which each specializes in types of litigation which
were formerly within the exclusive jurisdiction of an independent court or courts.
…………………

The second important effect of the reform was to consolidate the areas of
Common Law (in the narrow sense ) and equity. This means that all divisions of the
High Court as well as the Court of Appeal must apply all the rules and principles of
English law , regardless of whether they were developed ‘at law’ or ‘in equity’.
Previously, for example the Court of Queen’s Bench could not give effect to a defence
which was recognized only ‘in equity’; the litigant had to go to the Court of Chancery
so that in a second suit the plaintiff in the first suit might be enjoined from
continuing it. Today, the Queen’s Bench Division itself can and must test the ‘
equitable defence’ and, if it is established, reject the plaintiffs claim. The conflict
between ‘law’ and ‘equity’ , which is theoretically possible, is resolved by the
Judicature Act, s.25 (II), which lays down that the rules of equity shall prevail. Now
one must not conclude from the ‘fusion’ of these two bodies of law that the difference
between them has become without meaning. Within the High Court the division of
business is such that even today the matters which must be determined by the rules of
equity, however diverse they may be , are dealt with by the Chancery Division. This
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means that there are some barristers who specialize in ‘chancery work’ and it is from
these specialists that the judges of the Chancery Division are chosen. Thus despite the
‘fusion’ of the bodies of ‘law’ and ‘equity’, the distinction is still vital today in
the mind of the English lawyer , and the division is maintained in legal education
and in legal writing, the two areas still being covered in different lecture courses and
different books.

The final achievement of the reform of 1873 was to abolish the technical
procedural consequences of the writ- system. In Blackstone’s time the plaintiff still
had to announce at the outset of the litigation which of the 70 – 80 different forms of
action his demand was based on. His choice was final and it conclusively determined
which precedents could be invoked to decide the case, how the defendant was to be
summoned, how evidence was to be adduced, and how the judgment should be
executed. It often happened in such a system that the plaintiff in a difficult case chose
the wrong form of action and thus lost his claim on purely technical grounds. The
Judicature Act, by abolishing the ‘forms of action’, put the finishing touch to a
development carried forward by a series of special statutes from 1832 to 1860. Today
all trials in the High Court are started by the same ‘writ of summons’, that is, a formal
demand in which the plaintiff describes the basis and substance of his claim in
untechnical language; he no longer has to specify a particular type of claim. At the
same time the Judicature Act went far to unify the rules of
procedure……………………………

Substantive law also was more altered by legislation in the nineteenth century
than theretofore. It is true that in all periods of English legal history, including the
earliest, there had been statutes affecting private law, but such statutes did not aim at
any complete or comprehensive regulation of a particular area of law; they were
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generally simply ad hoc enactments, designed to change individual rules developed by

the case–law whose practical effects seemed to the king and his advisers, and
subsequently to Parliament, to be inconvenient. Bentham and his school would have
accorded a much more important role to legislation, since they believed that
legislation was the only way to achieve legal certainty and to bring the law into a
simpler and generally comprehensible form. On this last point Bentham’s demands
coincided with the interests of English commerce, and so towards the end of the
nineteenth century several comprehensive laws were enacted which covered specific
areas of commercial law: the Bills of Exchange Act, 1893, and the Marine Insurance
Act, 1906. But these statutes did not deliberately represent any legal breakthrough:
they were simply ‘codifying statutes’, that is, orderly presentations of exiting rules
which had been developed by the courts of Common Law. It follows that if there is
any doubt about the purpose of a provision, it is permissible to go back to judicial
decisions rendered before the statutes came into force. Apart from commercial law,
such statutes as regulate important areas of private law are almost all products of the
twentieth century. As yet there is no comprehensive codification of family law or the
law of succession or the law of contract or the law of tort. For this purpose England
still prefers special statutes which deal with particular questions, such as the law of
matrimonial property, intestate succession, adoption, illegitimacy, administration of
estates, or credit transactions, and even these statutes can be understood only against
the background of the unwritten Common Law, for they use the concepts and
categories and invariably presuppose the rights and doctrines which have been
developed by the courts.

In the area of modern social legislation the English practitioner is

overwhelmed by new enactments just as much as his German and French colleagues.
For some time now , just as on the continent , the English legal practitioner has barely
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been able to wade through the proliferating comprehensive enactments regarding

housing, the protection of tenants, industrial law, social security, traffic and insurance
law, the law of unfair competition and monopolies, and many other matters.

It follows from all this that the dichotomy, once so familiar, between the
Common Law as a creation of the judiciary and the Civil Law as creation of the
legislature has lost much of the plausibility it enjoyed even at the beginning of this
century. It is beyond dispute that the English courts have lost their leading role as
creators of law to Parliament and to ministers with power to issue statutory
instruments, especially in modern social law, while on the Continent the courts base
themselves on the actual words of the ageing codes only in the most technical sense
and the legislator in enacting new provisions is perfectly willing to adopt general
formulae which throw the burden of legal creativity on to the courts. Today the old
question whether statute or judicial decision is the primary source of law gives us
very little help towards understanding the basic difference between Common Law
and Civil Law. The most important question, in our view, is whether in deciding
individual cases judges on the Continent and in England use methods of finding and
applying law which are different in character.

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