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Another Problem with Legislation: James Carter v. the Field Codes

There is a fascinating paper published in 1884 by James C. Carter, The Proposed Codification of Our Common Law: A Paper Prepared at the Request of The Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure. This paper was an attack on David Dudley Field’s attempt to (legislatively) codify New York’s common law. Carter opposed replacing case law with centralized legislation. Carter notes that caselaw precedents are flexible and allow the judge to do justice (see also John Hasnas’s classic The Myth of the Rule of Law), while statutes are applied literally, even where injustice is done or the legislator did not contemplate this result. Thus, Carter argues, one of the worst effects of legislatively codifying law–replacing organically developed law with artificial statutes–is that it changes the role of courts and judges from one in which the judge searches for justice into mere squabbles over definitions of words found in statutes. As he said at pp. 86-86:

At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!

For more on problems of legislation, and discussion of legal codes and codification efforts, see my Legislation and the Discovery of Law in a Free Society; and the articles collected here; also my posts Book Recommendations: Private, International, and Common Law; Legal Theory and The UN, International Law, and Nuclear Weapons.

In particular, for further related commentary, see my Legislation and the Discovery of Law in a Free Society, e.g., note 78 and related text, which reads (edited here):

See Peter H. Aranson, Bruno Leoni in Retrospect, at 675. See also Lawrence M. Friedman, A History of American Law, p. 404 (discussing James Carter’s view that legislated “[c]odes impaired the orderly development of the law; they froze the law into semipermanent form; this prevented natural evolution. . . . A statute drafted by a group of so-called experts was bound to be an inferior product, compared to what centuries of evolution, of self-correcting growth, could achieve. . . . [T]he social and economic legislation of the late 19th century . . . were doomed to failure; they were hasty intrusions, and they contradicted the deeper genius of the law.”); and Bruce Benson, The Enterprise of Law, p. 282 (“public production of law undermines the private property arrangements that support a free market system”). An interesting discussion of, inter alia, the debate on whether to legislatively codify the common law is found in Mark D. Rosen, “What Has Happened to the Common Law?–Recent American Codifications, and Their Impact on Judicial Practice and the Law’s Subsequent Development,” 1994 Wis. L. Rev. 1119 (1994).

For further discussion of Leoni’s ideas in this regard and related issues, see Gottfried Dietze, The Necessity of State Law, in Liberty and the Rule of Law, supra note 36 (ch. 3, p. 74); Gordon Tullock, “Courts as Legislators,” in Liberty and the Rule of Law (College Station, Texas: Texas A&M University Press, Robert L. Cunningham ed. 1979); Giovanni Sartori, Liberty and Law, and chapter 13 of idem, Democratic Theory; Leonard P. Liggio, “Law and Legislation in Hayek’s Legal Philosophy,” 23 Southwestern U. L. Rev. 507 (1994); Murray N. Rothbard, “On Freedom and the Law,” New Individualist Review (Winter 1962, vol. 1, no. 4) 37 (reviewing Leoni, Freedom and the Law).


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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