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Codification

The codification movement, like the far more successful movement to elect judges, was a critical response to the judicial creation of an American common law. The codifiers drew part of their inspiration from Jeremy Bentham, an English philosopher, criminal justice reformer, and critic of the common law. Codifiers ridiculed both the practicality and suitability of judicial interpretation of the common law, and they proposed to replace it with a scheme of entirely written law, in which (like the civil law system) all of the pertinent laws would be contained in a code that judges would apply rather than interpret and adapt. They insisted that the tasks of creating and adapting the law belonged, in a republican government, to elected legislators.

The American codification movement, which was strongest from the 1820s through the 1840s, was composed of two groups. The first were social reformers, represented by Robert Rantoul, a Jacksonian Democratic lawyer from Massachusetts. Rantoul believed that judicial interpretation of the common law was "an evil sprung from the dark ages" that hurt the poor, who could not obtain legal counsel and thus were always at the mercy of the judiciary. 58 Rantoul also complained that the common law was encrusted with technicalities that so mystified common people that they never knew for certain what the law was. Under the common law system, Rantoul observed, litigants found out what the law was only after judges had made their decisions. Codification promised, therefore, to restore a sense of legitimacy to the law based on fair dealings, certainty, and popular will.

Legal reformers like Timothy Walker, editor of the Western Law Review during the 1840s, and Justice Joseph Story made up a second block of codifiers. They were unconcerned about the effects of codification on the poorer classes, stressing instead the lack of uniformity and certainty in U.S. law, especially in matters involving commercial relations. A code promised to simplify and unify this body of law, to reduce the growing bulk of reports, and to speed the processing of commercial disputes by freeing lawyers from the technical encumbrances of the common law. Such a reform, Walker and Story argued, would propel the economic development of the new nation.

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Enthusiasm for the codification movement waned in the 1850s, although there have been recurrent bursts of activity ever since. In part, the success of other law reforms short-circuited it. The broad adoption of the popular election of judges, which was a lawyers' reform, took away from social reformers the argument that judges were not popularly accountable. Furthermore, several state legislatures did undertake law revision, culling their statutes and forming what remained into legislative codes.

Besides Louisiana, which was a civil law state, the most important center of codification was New York. It was in New York that David Dudley Field (whose brother Stephen became a justice of the U.S. Supreme Court and whose other brother Cyrus invented the transatlantic cable) emerged as the nineteenth century's most important advocate of codification, acting from the tradition of Walker and Story. Field in 1848, at the direction of the New York legislature, prepared the Field Code of Civil Procedure. Based on the earlier work of Edward Livingston in Louisiana, Field directed his efforts at civil procedure: the way in which lawyers brought and pleaded cases before the courts. The code aimed to simplify this process and to make for a more just system, giving greater weight to the substantive issues in a case rather than the manner in which lawyers presented them. The Field Code was adopted in Missouri ( 1849) and California ( 1851), and several other western states also embraced it after the Civil War.



The common law, however, was undisturbed. Most significantly, a large and potently influential group of practitioners (the most able and successful members of the emerging antebellum bench and bar) stood implacably against the full-blown schemes of codification advanced by Walker and Field. They were motivated to oppose it by "an attachment to what they considered a tried and true legal system, and a fear that change would produce legal uncertainty destructive of established rights." 59

 


Date: 2015-01-29; view: 742


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