Republicanism and common law
Should a democratic republic maintain common law or seek codifcation of law? Mike McNair argues that codification gives more power to the working class.
Labor Tribune “stands for the immediate abolition of the monarchy system and its replacement with a democratic republic”. Marcus Strom, Labor Tribune editor, asked me as a Brit communist and advocate of a democratic republic in Britain, who is also an academic lawyer, if creating a democratic republic involves breaking with the common law.
The question has particular significance for Australia because the ‘common law’ is an inheritance of modern Australia’s origins as a British colony. One aspect of this is that the (supposedly) common law doctrine of terra nullius, that the land was owned by no one when the colonists arrived, has played an important role in the oppression of the Aboriginal population of Australia. Even the rejection of terra nullius by the High Court in Mabo v Queensland (1992) and Wik Peoples v Queensland (1996) does not mean that the courts wholly recognise Aboriginal land claims.
Another is that the Australian constitution, though codified (unlike the British constitution) is in several respects modelled on the British constitution. A third is that Australian lawyers participate in and are influenced by English lawyers’ debates, so that the High Court may refer to English judicial decisions as “persuasive authority”. Here, though, the influence runs both ways: English lawyers also use Australian judicial decisions as “persuasive authority”, in fact, rather more so than the decisions of courts in other common law countries.
However, the relationship between democratic republicanism and common law is also a problem question for English and Welsh republicans. (The Scots have their own law, but not even the most extreme Welsh nationalists want to revive Cyfraith Hywel, the pre-conquest law of Wales, and with it chattel slavery, private compensation as the primary remedy for homicide, trial by oaths, magical tests and explicit sex discrimination.)
It is not by any means a new problem. The short-lived English republic of 1649-1660 saw sharp debates about whether or not to codify the law, about the relationship between common law, jury trial and local self-government. These debates were repeated in a different form in the immediate aftermath of the American revolution, between the 1780s and 1810s. Hidden behind the Terror and the revolutionary wars are similar debates in France after the 1789 revolution, which resulted in the creation of the French civil, criminal, procedural and commercial codes under Napoleon’s Empire.
To grasp the issues involved we need to understand two problems. The first is the underlying idea of democratic republicanism and its problematic relationship to law as such. The second: what is specific about the common law as opposed to other sorts of law -especially the codified civil law, ultimately based on Roman law, which is now used almost everywhere except in common law countries.
Democratic republicanism and the rule of law
The underlying idea of democratic republicanism is that we all get to participate in taking political decisions and that the holders of public office are the citizens’ servants, not their masters. The central principle is therefore accountability: that elected representatives are accountable to their electors and ministers to elected representatives.
Going along with this idea and connected with it is the idea of self-government in the localities and in sectoral organisations such as universities (to give only one example in which, until recently, self-government was widely accepted). In democratic republicanism authority moves from the bottom up, not from the top down; and democratic republicanism is therefore opposed to unnecessary centralism. Of course railways and power grids have to be run in a centralised fashion, but for a great many activities radical centralism is inefficient as well as anti-democratic.
The principles of accountability and of self-government are in conflict with the idea of the ‘rule of law’. A recent discussion of the issue as it affects the British constitution is Adam Tomkins’s Our Republican Constitution (Oxford 2005). Tomkins argues that the British constitution as it developed after the revolution of 1688-89 was profoundly influenced by the republican ideas of accountability and self-government. However, the growth of the bureaucratic state and, in particular, party discipline in the two-party House of Commons, has led to a loss of faith in republican principles. In their place, political liberals hope for control of the state by the courts (“rule of law”), through increasing the scope of judicial review of government action.
Tomkins argues that the increased scope of judicial review does not, in the end, lead to real and substantial limitations on the growth of the state. Judges are, at the end of the day, part of the same establishment; they frequently display bias in favour of government, demonstrated in detail in J.A.G. Griffiths’s The Politics of the Judiciary (1977; 5th ed., London 1997), and David Robertson’s Judicial Discretion in the House of Lords (Oxford 1998).
The judges’ most ringing declarations for freedom come with small-print caveats that allow the government to make marginal adjustments to achieve its anti-democratic aims. Recent examples can be seen in the two Belmarsh prison cases. The British House of Lords has said in the name of human rights that the government may not imprison aliens suspected of involvement in terrorism without open trial, but that it would be acceptable to imprison both British subjects and aliens on the same grounds (Belmarsh No. 1 (2004)). It has said that the government may not use ‘evidence’ obtained by torture to justify this imprisonment - but is under no obligation to point out to the secret tribunal handling the case that the ‘evidence’ may have been obtained by torture in Uzbekistan, etc. (Belmarsh No. 2 (2006)).
At the same time, judicial review reduces accountability at the centre and reduces self-government in the localities. What the lawyers say becomes an excuse for government not to respond to parliamentary objections to its policy. Local councillors are confined within such a narrow cage of legality that changing the party in control of the council makes almost no difference to the council’s conduct - councillors have to do what the lawyers tell them they are allowed to do. It is these anti-democratic consequences of judicial review which have provided wider support for recent rightist objections in British politics to the Human Rights Act 1998.
In the 1650s, many republicans and radical Puritans hoped that getting rid of the monarchy would also allow radical reform of the law to throw off the ‘Norman yoke’ and restore ‘Anglo-Saxon liberty’; or, at least, to improve the obscurity, expense and delay of English law and judicial proceedings. Their aims came up against the stubborn resistance of the lawyers and were defeated. The story is told in outline in Donald Veall’s The Popular Movement for Law Reform 1640-1660 (Oxford, 1970), and parts of it in more detail in Blair Worden’s The Rump Parliament 1648-53 ch 6 (Cambridge 1974), Nancy L. Matthews’s William Sheppard, Cromwell’s Law Reformer chs 2-5 (Cambridge 1984) and Alan Cromartie’s Sir Matthew Hale 1609-1676 chs 4-5 (Cambridge 1995). Cromartie opens his account with the striking conclusion that “the republic was a failure because common law survived”. (p58)
Cromartie’s argument is that monarchism and the ‘prerogative’ rights of the Crown were so deeply embedded in the common law that allegiance to the common law drove towards Restoration: “The Rump [Parliament] (and still more the Protectors [the military dictator Cromwell and his son]) were thus forced to behave like a king.” We could put it another way. Radical law reform would have gained mass support for the Commonwealth; but a strong enough coalition existed to defeat it.
Radicals sought radical reform of the law: simplification of the law through codification; the registration of land titles; the return of the administration of justice from Westminster to the localities; and ‘jurors judges both of law and fact’. If these goals could have been achieved, the English republic would have created a bottom-up system of justice that would almost certainly have been quicker and cheaper than the common law system and would have gained it very considerable support among the small farmers and artisans who were the majority of England’s population.
However the majority of the lawyers feared the result would be loss of income as well as of their secret professional ‘science’. Many landowners feared that registration of land titles would expose their indebtedness and prevent them borrowing more money and that local justice and ‘jurors judges both of law and fact’ would end in rendering their property rights insecure in disputes with their tenants and commoners. The royalists, defeated in war but still a large minority in the society, played on these fears. Hale, a secret royalist, managed to become chair of the Commonwealth’s 1652 law reform commission and block or divert proposals for radical reform.
The radicals failed in England, but they were able to implement a good deal of their ideas in colonial America, especially in New England. Short (probably too short) law-codes were adopted. The practicalities of travel and the weakness of market demand for lawyers, meant that the administration of justice was largely devolved to the localities and to jury decision-making. William E. Nelson’s Americanization of the Common Law (2nd ed. Athens, Ga. 1994) documents a process by which this local and largely informal decision-making in post-revolutionary Massachusetts was replaced by a system that became more like the lawyer-controlled English common law.
The politics of the process are more explicitly drawn out in John F. Reid’s Controlling the Law (DeKalb 2004). This is a study of the process in New Hampshire after the revolution. Democratic Republicans, or as Reid also calls them “common-sense jurists” argued explicitly for control from below and therefore in the localities and for the role of juries in determining law as well as facts - for ultimate control to be in the elected legislature. Federalists and their “receptionist” allies argued for a legal system more like the English system. The “receptionists” fought a political guerrilla war over judicial appointments and salaries, over procedural means to separate decisions on ‘the law’ from ‘the facts’ and bring juries under control, over appeal mechanisms and over law reporting. The growth of a legal profession was in the end funded in practice by the better-off who could afford the fees. By the 1820s the ‘receptionists’ had won.
Reid is a rule-of-law enthusiast and hence a supporter of this process of change. A more negative view was taken in Morton Horwitz’s Transformation of American Law 1780-1860 (Cambridge, Mass., 1977). Horwitz argued that by the 1830s, the several states of the US had obtained a legal system that was fundamentally responsive to the interests of business in overriding local customary rights and protecting businesses from lawsuits from employees and neighbours injured by their activities. Horwitz’s account has been challenged in Peter Karsten’s Heart versus Head (Chapel Hill, 1997). But what Karsten succeeds in showing is two things. The first is that the law described by Horwitz applied mainly in the east coast states and not further west, where ‘common-sense’ decision-making continued to work at the expense of business. The second is that it was based on existing 18th-century English law: from which he infers, peculiarly, that it was not class law. At most it tells us that early 19th-century east coast US lawyers need not have believed that they were serving the boss class. If so, they were less honest with themselves than Matthew Hale, who openly understood and stated that his opposition to radical law reform was in defence of the rights of large property owners against their tenants.
The French revolutionaries carried their commitment to republican principles, as opposed to the rule of the lawyers, to the point of utopianism. Their innovations have been described briefly by R.C. van Caenegem in An Historical Introduction to Private Law (Cambridge 1992) and in more depth by Jean-Louis Halperin in ‘Le juge et le jugement en France à l’époque révolutionnaire’ (in Robert Jacob ed. Le juge et le jugement dans les traditions juridiques européennes ch11 (Paris 1996)). They aimed for widespread use of arbitration and conciliation as an alternative to legal adjudication. The use of advocates (barristers) was prohibited. They replaced the accumulated body of varying jurisdictions and provincial laws of the ancien regime with the idea of a single law and a single hierarchy of courts. First-instance courts was where cases were tried firmly in the localities. They introduced trial by jury in criminal cases and the election of judges (without any requirement of legal qualifications) for fixed terms of office.
The only law was to be the statutes passed by the legislature. Hence the courts, even the appeal courts, were prohibited from laying down precedents or general rules. The highest court, the Tribunal de Cassation, had the power merely to annul the decisions of the courts below and refer them back; if conflicts of interpretation of the law persisted, there were to be referred to the legislature for decision.
In reality, though legal qualifications had ceased to be required, existing lawyers managed to occupy many judicial offices. In the absence of jury trial in civil proceedings, they continued to use what they knew: the procedures laid down by the royal government in an Ordonnance of 1667. Under the Directory (1795-99) the self-government of the localities was rolled back, and a campaign began against ‘ignorant’ judges. After Napoleon’s coup d’état, the 1799 constitution reintroduced professionally qualified and centrally appointed judges and in 1804 the profession of advocate was reintroduced. The jury trial in criminal cases was restricted to issues of fact, rather than the ‘general verdict’ available in England and the US. The assemblies of the revolutionary period had failed to produce the planned Codes of Law; the Napoleonic regime did so, largely on the basis of pre-revolutionary academic summaries of Roman and French law.
In 1790s-1800s France the connection between the establishment of capitalist order in the wake of the revolution and the roll-back of democratic republicanism to the benefit of the ‘rule of law’ is perhaps less immediately transparent than the resistance to radical law reform in 1650s England or the activities of the ‘receptionists’ in post-revolutionary USA. But the chronology strongly indicates that the connection is there.
Why should the history, including the modern British experience, show a conflict between democratic republicanism and the rule of law, in which the rule of law is particularly associated with capitalist order?
All societies and social groups have rules of conduct about how humans should behave and especially how they should behave towards one another. A very large proportion of these rules and, in pre-class and some class societies all of them, are customary in character. That is, they exist because most people agree that this is how you should or should not act and their sanction - what happens if you break the rule - is public disapproval. A good example is the custom of buying your shout in a pub.
A good deal of the British constitution, especially the parts Adam Tomkins calls the ‘republican constitution’, has this character: conventions or customary rules are obeyed because to disobey them would produce a political outcry.
Some societies - invariably class societies, including all modern societies - also have rules that are law. For rules to be law involves two distinct practical elements. The first is that these are rules which are applied by judges at trials, in order to protect the rights of disputing parties or ‘do justice’. The trial has a striking feature: only the rights and interests of the disputing parties are considered. For example, the fact that for the claimant company to win will bankrupt the defendant company and throw 10,000 people out of work, is not something judges are supposed to consider: “hard cases make bad law”. This is inherent in the method of trial: if, when disputes are to be settled, everyone who is directly or indirectly affected was entitled to be heard, the ‘trial’ would dissolve into political decision-making and the way to decide it would be by decision of the whole community or the political authorities.
This feature of trials presupposes that what they are about is protecting private property rights. Without the private property rights, trial is the wrong way to settle disputes. The judges themselves recognise that some issues are “non-justiciable” because of the involvement of forward-looking policy and multiple parties. Thus, for example, the English rule in Foss v Harbottle (1844), still in force, says in effect that the court will not generally investigate the merits of decisions of company policy reached by a majority of the shareholders.
When we try to use ‘human rights’ as a way of controlling government, what we are doing is attributing these rights to individuals (and corporations) as if they were private property. It is this that makes them ‘justiciable’: capable of being dealt with by trials. But it turns out that the principal political rights - freedom of speech, assembly, and so on - are not exactly like private property. Most of the time how I use my house, or my car, does not affect my fellows. But in the case of the political rights, the use of these rights always affects others: that is the point of them. Hence the political rights inherently conflict with one another and, in the terms courts use, have to be ‘balanced’. Thus the sponsors of the ‘War on Terror’ argue that the right to life of members of the general public overrides the right to liberty of ‘terror suspects’.
The second element is that the rules have to be contained in some authoritative written source or sources: the Quran and the hadith of the prophet in Islamic law, the statutes and precedents in English law, the codes in most continental European laws. Without its being written down, law exists only in the memories of the participants at trials and is, in effect, custom.
Writing poses a problem of interpretation. What do the words in the Quran, or an act or judicial precedent, or the code, mean? It used to be believed - and occasionally still is - that this is a simple problem: there is an ‘ordinary natural meaning’ of words, and if judges would just stick to the words, the law would function democratically. It is now more or less generally understood that this is not the case. Where there is a serious dispute, the meaning of even quite simple words like ‘table’ can be disputed with defensible arguments on both sides (as in Re St Stephen’s Wallbrook (1987), a dispute as to whether a Henry Moore statue with a flat top counted as a ‘table’ within the canons of the Church of England: two courts found differing meanings of ‘table’).
What lawyers do is limit the number of meanings that can properly be offered for words interpreted in judicial proceedings. By doing so, they make it possible for litigants and potential litigants to predict the outcome of judicial proceedings in common cases. It is for this reason that the attempt of the French revolutionaries to actually abolish advocates while retaining law was utopian, and that they struggled with the attempt to bring all disputed questions of interpretation back to the legislature.
But in order to do this job, the lawyers have to have at least partial control of the interpretations. If there are no advocates - or if jurors are judges both of law and fact - or if judges are elected without any knowledge of law - the lawyers can’t do their job, and the outcome of disputes can only be predicted by using political analysis of the court or jury.
So far, all this means is that it is necessary to draw a rough line between the proper sphere of law - that is, the protection of property rights in private disputes - and the proper sphere of democratic politics. We may think (I do think) that we should aim in the long term to move more towards custom and away from law, and that this implies more use of jury trial than now exists, codification to simplify the law and increased public education in the law. But that is not the same thing as abolishing law.
In a sense, though the French revolutionaries did not think this was what they were doing, what they tried was to abolish law. The Soviet regime de facto abolished law, because the judges and lawyers were entirely under party control, though formal laws remained in existence; the Chinese regime formally abolished law, though in practice the edicts issued by the Party centre remained a sort of quasi-law; the Pol Pot regime in Cambodia/ abolished law altogether. The results were not pretty in any of these cases. The reasons were that the underlying material grounds for the existence of private property and the state had not been overcome and the parties that took power were not democratic in character and had not promoted democracy in the broader movement: hence, to abolish law was merely to set free the state bureaucracy to exploit and abuse the society.
This is a problem distinct from the idea of the rule of law. ‘Rule of law’ and ‘human rights’ ideas recognise no limits at all to the idea of law and to the fundamental priorities of the lawyers: protecting property rights and certainty, i.e. lawyer control of the rules. Because no limit to law is recognised, the rule of law opposes itself to political democracy: parliaments and local authorities should not be allowed to make decisions which ‘violate the rights’ of the lawyer’s client; jury trial becomes a ‘problem’ that should be solved by increased control by professional judges.
It is the fact that the rule of law secures the protection of property rights at the expense of political democracy that has commended itself to capitalists, starting with the English agri-capitalists of the 1650s and continuing through the Federalists of the early US into modern history. Capitalists are a minority, which makes political democracy a problem for them. And unlike earlier ruling classes, they do not claim a superior legal personal status. What distinguishes them from the rest of us is simply their property rights. It is this which makes the rule of law peculiarly appropriate as a capitalist constitutional principle.
In reality, however, the rule of law tends to eat itself. The arguments of “War on Terror” supporters about human rights conflicting with one another are merely the tip of a very large iceberg. As legal rules multiply to control the state, their complexity and obscurity produces judicial discretion uncontrolled by law. At the same time the state responds to judicial decisions with new statutes and regulations rules to cover its back against the latest judicial decisions, producing yet more complexity and obscurity. We tend towards politics done in an undemocratic fashion through courts and the effective disenfranchisement of the voters: most apparent in the US.
Democratic republicans should seek to avoid a legal ‘Year Zero,’ the utopian and disastrous project of the immediate abolition of law. But we do need to break from the ‘rule of law’ idea, which is both anti-democratic and tends to collapse into simply handing over political decisions to judges. The question of attitudes to the concrete ‘common law’ poses itself in this framework.
“Common law” has a number of meanings. In origin, it referred to the common law of all England, as opposed to the specific law of the city of London, or the county of Kent, or various other local and special laws. It had a continental equivalent: the ius commune (common law) was the law, based on interpretations of Roman law, taught in most European universities, as opposed to the ius proprium (specific law) which might be of Venice, or Florence, or Saxony, or ‘France’ (meaning the area immediately around Paris) or Normandy. This sense has now gone out of use.
In modern law-talk, ‘common law’ can be contrasted with civil law, meaning the type of legal systems in use in continental Europe and in other countries that have copied one or another of the continental codes as the basis of their law; with equity; or with statute law.
The first two contrasts are connected. ‘Common law’ as contrasted with equity was the body of rules applied in the English ‘common law courts’ before 1875 (Queen’s Bench, Common Pleas, Exchequer, originally created in the 12th to 13th centuries). ‘Equity’ was the body of rules applied in the Court of Chancery and other courts of equity, originally created in the 15th to 16th centuries.
The fundamental differences between common law courts and courts of equity concerned procedure. In common law courts, the first summons of the defendant required disclosure of the nature of the plaintiff’s claim; in the courts of equity, it did not. Common law courts used public trial by jury, with witnesses examined in open court; courts of equity, instead, used secret examination of witnesses, whose depositions were written down and later read out to the court. Common law courts did not (until 1854) require defendants to give evidence against themselves; courts of equity did. In all these features, courts of equity followed the ‘civil law’ pattern of procedure common in continental Europe.
Before the English revolution of 1640, there was a court of criminal equity, the Court of Star Chamber, which shared these characteristics. The revolutionary parliament, quite rightly, abolished it. This has a message for modern republicans, which should be confirmed by the fact that the French revolution and subsequent reforms elsewhere in Europe introduced forms of public trial by jury in serious criminal cases.
In these matters, then, advocates of the democratic republic should be emphatically defenders of the common law tradition as opposed to those of the civil law and equity. We should be for early disclosure of the case against a defendant, whether in private law or criminal proceedings; for public trial, not secret examination of witnesses; and, most especially, for trial by jury.
In England, jury trial has almost been eliminated from private law proceedings (property and contract cases and claims for damages for wrongs), and it has even been (unconstitutionally) made subject to judicial discretion in libel cases. The process has not gone as far in Australia. Trial by jury is fundamental to political democracy and not just in criminal cases. In its absence, the law becomes the pure playground of the lawyers behind the backs of the ordinary citizens.
Common law or Roman law
A second group of differences between the common law and the continental civil law is that the private law of the civil law tradition is more immediately based on ancient Roman law and the interpretations of Roman law by medieval and early modern academic lawyers.
Some concrete examples: the civil law tradition contains a concept of ‘ownership’ of property as an absolute and indivisible right, while property rights at common law - and even under a Torrens title system, like that used in Australia - are generally divisible in point of time as well as in point of space. Hence the tenant in English, or Australian, law has a type of time-limited property right, while the tenant in French or German law in general only has a personal right against the landlord. Trusts for the benefit of individuals are a routine element of English, and hence Australian, property law; in the last 30 years several continental countries have been agonising about how to introduce them into their laws. The French Code Civil includes a general principle that a person is liable to pay for damage caused to another by his fault, while the German Bürgerliche Gesetzbuch has a narrower list of protected interests covered by the same general principle. English, and hence Australian, law has no general principle in this field at all but instead a list of individual ‘torts’ or private wrongs that attract liability.
Because of these differences, Hegel and, following him, Marx, and somewhat later Weber, thought that the common law was a medieval survival: true law, or truly capitalist law, was law of the continental type. This view came close to being orthodox Marxism, or would have if the question was not so obscure: a striking example from the Stalinite tradition is G.Y. Eörsi’s Comparative Civil (Private) Law (Budapest 1979). One more or less from the Trotskyite tradition is Bob Fine’s Democracy and the Rule of Law (London 1984). Part of the argument relates to the issue of code and precedent, which I will discuss next. But as applied to the substance of the law, the ‘feudal survival’ idea is peculiar, given that England was one of the first countries to develop full capitalism, and certainly earlier than those countries that had fully ‘received’ Roman private law ideas (compare Ellen Meiksins Wood, The Pristine Culture of Capitalism (London 1992)).
In this aspect of the difference, there is no reason to suppose that either the common law system or the civil law system is superior overall. The civil law property rules are a somewhat artificial attempt to impose ancient doctrine on modern circumstances, while the common law property rules are (largely) simpler and more flexible in operation, even if there is a lot of arcane history built into them. On the other hand, the approaches of the civil law tradition to contract and private liability (torts) may well be superior to those of the common law.
If we are looking to avoid ‘Year Zero’, democratic republicans should take account of reasonable expectations that property and other private law arrangements will continue unless there is a strong reason to change them. In the case of Australian land tenure rules, the continuing injustice to the Aboriginal peoples is such a strong reason for change. But there is no strong case for supposing that the substantive common law is in general unusually backward law and hence that a democratic republic should (for example) adopt the French code wholesale.
Common Law, statute law, code law
The third type of contrast sets ‘common law’ - meaning the law created by gradual development out of precedents and lawyers’ interpretations - against ‘statute law’ meaning acts of parliament and similar legislation created by political authorities. In this perspective the most extreme form of statute law is a code, which covers the whole of the law - or the whole of some part of the law, like a civil code, criminal code or commercial code - and excludes reliance in court on sources of law dating before the code.
The professional tradition of the common law is characterised by an ideological hostility to both statute law in general and codification in particular. This hostility is reflected in legal education in marginalising subjects, which have high levels of statutory basis in favour of teaching case law. It reached an extreme in the ‘American case method’ originally developed at Harvard University, in which students are taught exclusively on the basis of close analysis of ‘leading cases’. In Britain, the lawyers have ‘seen off’ three political efforts for codification: in the 1650s, in the early 19th century and in the 1960s. The early 19th century campaign lacked a strong political base, but in the 1650s and 1960s the lawyers had to proceed by taking over reform/ codification commissions and preventing them producing codes.
Disentangling the politics of this ideology involves a complex history. The idea of a general written code of laws promulgated by political authority goes right back to the origins of law as such in ancient Mesopotamia 4000 years ago. From this tradition, by way of the codes attributed to Draco and Solon in ancient Athens in the 6th century BCE and the Twelve Tables in ancient Rome (450 BCE), and the Biblical figure of King Solomon the law-giver, the christianised late Roman empire inherited the idea that the emperor should produce a law-code. The particular codification of Justinian I (527-565 CE) was ‘brought into force’ in Italy in 554 CE.
The idea that Justinian’s codification was ‘in force’ in spite of the intervening political events formed the basis of its use in the development of legal education and legal argument in Italy from the 12th century onwards. The argument could not be used in Scandinavia, which had never been part of the Roman empire, or in Britain, which had ceased to be part of the Roman empire a century before Justinian’s code. It was fairly dodgy in France, the Netherlands and Germany - let alone Scotland - but was nonetheless used in these countries on the basis that their more recent rulers had authorised the use of Justinian’s codification as a source of law. The idea of codification therefore became linked to the idea of a codification based on Roman law.
Common law, statute law and the English revolution
James VI and I, king of Scotland and England, when he came to the throne of England in 1603 promoted the idea of a codification that would unite English and Scots law on the basis of Roman law. Many university-trained civil lawyers in England supported him: the change would bring them into the mainstream of English legal life. Many parliamentarians opposed him: the civil law notoriously held that princeps legibus solutus, the emperor (king) is not bound by the laws, quod principi placuit habet vigorem lex, the will of the emperor (king) has the force of statute, and imperator dominus mundi, the emperor (king) is the owner of the world, so that his subjects hold property rights only at his pleasure.
Many common law barristers, trained at the London Inns of Court, also opposed the idea. Codification on the basis of Roman law would mean that their professional expertise would be marginalised. It was in the context of this political debate that leading common lawyer Sir Edward Coke provided the first full development of the ideology that the common law was better than statute law and codes in particular, because it originally developed out of popular custom and remained linked to custom by developing down through precedents over the ages.
The arguments of Coke and his co-thinkers set up the common law, allegedly originally rooted in popular custom, as a restraint on the powers of kings. But in 1629-40 Charles I ruled without parliaments. He was able to do so at least partly because it turned out that there were plenty of common lawyers who were willing to back the king; and they were able to produce plenty of medieval common law precedents and doctrines that supported the absolute and uncontrollable power of the king. The idea that the king was backed by the law, plus the naked class appeal of “no bishop, no king; no king, no property” allowed the royalists in 1640-41 to build up a party that resisted parliamentary reform and in 1641 took to arms.
In response to this development, opponents of the royal power necessarily shifted in their majority onto new political grounds for justifying resistance to the king. One argument was protestant millenarianism; another was open republicanism. Common law argument became primarily the domain of ‘conservatives’. This political context means that Cromartie is right to say that “the republic was a failure because common law survived”.
Republicanism and codification
Republicanism carries with it arguments both for statute law and for codification. The argument for statute law is straightforward. The members of a republican legislature are elected representatives of the people and answerable to them. Judges, even if they are elected, are not elected as representatives; and what they decide is dependent on their legal training and the arguments put before them by lawyers. Statute law therefore can have a democratic legitimacy that judicial precedent, effectively made by the unelected lawyer-caste, can’t.
The argument for codification follows from the argument for statute law. If statutes merely deal with particular issues, the rest of the law is left to the lawyers. But it also has another element: citizens have the right to know the law by which their conduct is to be governed and a short, clear and comprehensible code allows this. This idea goes back to the Athenian democracy and the Roman republic, both of whose constitutional practices required the publication of the laws in an accessible form.
In this context, the ideology of the customary character of the common law became an argument against the republican case for codification. This was its role in the thought of Matthew Hale, who was one of its major supporters after Coke, and of 18th century semi-Tory legal writer William Blackstone. It was also the role that similar arguments played in the work of early 19th century German conservative nationalist lawyer Friedrich Karl von Savigny. Savigny’s Vom Beruf Unserer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg 1814) was written as a conservative argument against codification on the French model. It was translated into English as On the Vocation of Our Age for Legislation and Jurisprudence (London 1831) as part of a conservative campaign against codification and radical law reform.
Lessons of history
The lesson of the continental codes and in particular of the French experience, is that it is not possible to retain law and wholly eliminate precedent and interpretation by lawyers. A legislature simply can’t deal with every difference of interpretation. Moreover, the French prohibition on the courts making general rules, i.e. precedents, has led mainly to brief and uninformative statements of the court’s reasons for deciding as it did. A single judicial decision cannot make law as it can in common law countries; but the pattern of judicial decisions over time is analysed by the academic lawyers and their writings are then used as authority on the true interpretation of the code. Several authors, most lucidly Reinhard Zimmermann in his Roman Law, Contemporary Law, European Law (Oxford 2000), have analysed the way in which the codes fail to achieve their aim of cutting off the legal past, since the lawyers’ pre-code training and culture affects how they read the code provisions.
The other side of the coin is that the Coke-Hale-Blackstone and modern common lawyers’ idea of the common law growing naturally out of popular custom and gradually evolving from age to age in adaptation to the national character is historical nonsense. The common law did not originate as the customs of the people of England, which were mostly highly local - the customs of London, or Kent, and so on. It was, at most, the customs of the King’s court. The routine judicial business of the King’s court and therefore its customs, began with acts of royal legislation by king Henry II’s government in the later 12th century.
Later, the medieval English common law can be contrasted with the continental laws, not by the marginality of legislation in England and its limited effect on the law but, on the contrary, by the fact that the English parliament legislated much more than any continental ‘estates’ assembly outside the Italian city republics, and that this legislation had much more effect on the substance of the law.
A single example. At the time of the early 17th century codification debate, Scots and English civil lawyers argued that the common law of property in land was merely a variant of the feudal law common across western Europe and could be taught from the standard European university text on the subject, the Libri Feodorum (Book of Fiefs). Coke demonstrated in his 1628 Commentary upon Littleton that medieval and early modern English law had diverged markedly from this model. It had done so through a series of pieces of legislation beginning with some of the more obscure provisions of Magna Carta (1215) and continuing down to legislation in Coke’s time, as well as through lawyers’ interpretations of these statutes.
The lesson is double-sided. Advocates of a democratic republic should not fall into the illusions of legislation alone, or of a perfect codification that will clear all difficulties and get rid of lawyers. But on the other side, we should not buy into the common lawyers’ ideology of the customary character of common law as law based on precedent. This ideology is a falsification of the history of the common law itself. Its arguments against codification and radical law reform are self-serving and serve the interests of the propertied classes and political conservatism.
Public law has two branches: constitutional and administrative law that regulate the functioning of the state power, and criminal law that fixes when citizens may be liable to punishment. Britain has an uncodified constitution, and separate uncodified criminal laws in England and Wales on the one hand and Scotland on the other. Australia, in contrast, has an existing codified constitution (Commonwealth of Australia, Constitution Act 1900). Hence in the field of constitutional law, the question of whether to codify is not posed: the existing Australian constitution is a code. It would, moreover, be utterly ridiculous to replace this code with a reversion to the English common law as it affected colonies in the 19th century, which would be the legal consequence of abolishing the Australian constitution without replacing it. The question posed by republicanism is what the content of a replacement constitutional code should be.
The Commonwealth itself, the ACT, the Northern Territory, Tasmania, Queensland and Western Australia have criminal codes, while New South Wales, South Australia and Victoria are ‘common law’ jurisdictions. The Commonwealth Criminal Code (Criminal Code Act 1995) is part of a model criminal code project intended for adoption in all states. So far, only the ACT, New South Wales, Western Australia and the Northern Territory have adopted the new code.
In criminal law, the question “to codify or not” is thus a live political issue in Australia. For advocates of a democratic republic, the choice should be clear. The argument against codification presented by advocates of common-law criminal law is “flexibility”. What this “flexibility” means is “flexibility” in the interests of policemen and prosecutors - not “flexibility” in the interests of criminal defendants. In criminal law almost more than in any other area, the idea that the state officials should serve the people, not the other way round, implies that the criminal law should be clear and should be laid down by statute, not by prosecutors and judges digging up 17th and 18th century English precedents to find a way to get a conviction. (Fortunately, most of the prosecutors are not capable of reading the texts of pre-17th-century criminal law … or else medieval precedents would undoubtedly be produced.)
Common law as a political ideology
Opposition to codifying criminal law in the name of ‘flexibility’ is the tip of a larger iceberg of common law political ideology in the legal profession and among conservatives. We have already seen the meaning of this common law ideology in the history: “The republic was a failure because common law survived”, and in the early US democratic republican ideas succumbed to the reception of the common law.
I have said earlier in this article that advocates of a democratic republic should defend common law procedural conceptions against traditional civil law ones. I have argued that there is no special merit or ‘more advanced character’ in the content of the private law of the civil-law codes as against that of the modern common law. I have accepted, in this context, a case for preserving legal continuity in private law matters. And I have argued that the idea of immediately getting rid of lawyers, precedents and lawyers’ interpretations by a ‘perfect code’ is an illusion.
Nonetheless, the republican case for codification applies nearly as strongly to private law as it does to criminal law. The point of codifying in this context is stronger in England than Australia: it is to break the myth of the “thousand year old constitution” and to insist that lawyers must work within the frame of political democracy, not pull ancient rabbits out of their hats in the defence of the class elite against democracy. But the differences on the codification of criminal law show that the same underlying ideology is present in Australia, too, even if it is weaker than in England. This implies that republicans have the same need to make a definite break - even if partial - from common law ideology, by fighting for codifying the law.