The Challenge of Codification in English Legal History

The effort to codify areas of British and European law has gained new urgency under the efforts towards legal unification in Europe. This paper looks at English legal history during the 17-19 century, to explore earlier proposals for the codification at law. Although it is generally assumed that England’s common law system was inherently antithetic to legislative codification, there was a well-established English approach to codification that developed early on in English legal history. In trying to explain the failures of previous attempts to codify England’s law, we need to focus on political obstacles rather than purely legal considerations. Efforts to achieve legal unification among the European states have returned the question of legislative codification to a center position in the discussion of law reform. For an historian of English and European law – such as myself – it is always tempting to view these contemporary discussions in light of a longer historical perspective. The great 19-century British jurist, Henry Maine, began his most influential work, Ancient Law (1861), with a chapter on ‘Ancient Codes’, where he discussed the classical laws of antiquity such as Rome’s Twelve Tables and the Hindu Laws of Manu; and contrasted these codes with the modern idea of codification. This is a helpful warning that when an historian thinks about codification, the perspective may run in length to several thousand years! In my presentation here I shall be more modest. My focus will be on England and English common law, and my perspective will be confined to only a few centuries.