§ 53 Codification
The advantages of enacted law so greatly outweigh its defects that there can be no doubt as to the ultimate issue of its rivalry with the other forms of legal development and expression. The whole tendency in modern times is towards the process which, since the days of Bentham, has been known as codification, that is to say, the reduction of the whole corpus juris, so far as practicable, to the form of enacted law. In this respect England lags far behind the Continent. Since the middle of the eighteenth century the process has been going on in European countries, and is now all but complete. Nearly everywhere the old medley of civil, canon, customary, and enacted law has given place to codes constructed with more or less skill and success. Even in England, and the other countries to which English law has spread, tentative steps are being taken on the same road. Certain isolated and well-developed portions of the common law, such as the law of bills of exchange, of partnership, and of sale, have been selected for transformation into statutory form. The process is one of exceeding difficulty, owing to the complexity and elaboration of English legal doctrine. Many portions of the law are not yet ripe for it, and premature codification is worse than none at all. But the final result is not doubtful.
Codification must not be understood to involve the total abolition of precedent as a source of law. Case-law will continue to grow, even when the codes are complete. The old theory, now gradually disappearing, but still true in most departments of the law, is that the common law is the basis and groundwork of the legal system, legislation being nothing more than a special instrument for its occasional modification or development. Unenacted law is the principal, and enacted law is merely accessory. The activity of the legislature is called for only on special occasions to do that which lies beyond the constructive or remedial efficacy of the common law. Codification means not the total disappearance of case-law, but merely the reversal of this relation between it and statute law. It means that the substance and body of the law shall be enacted law, and that case-law shall be incidental and supplementary only. In the most carefully prepared of codes subtle ambiguities will come to light, real or apparent inconsistencies will become manifest, and omissions will reveal themselves. No legislative skill can effectually anticipate the complexity and variety of the facts. The function of precedent will be to supplement, to interpret, to reconcile, and to develop the principles which the code contains. Out of the code itself, therefore, a body of case-law will grow, as a judicial commentary and supplement. It will be expedient from time to time that this supplementary and explanatory case-law be itself codified and incorporated into successive editions of the code. But so often as this is done, the process of interpretation will begin again with the like results.