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  Codification

  Except for Holmes, there was little, if any, formal or speculative American jurisprudence in the late nineteenth century. Jurisprudence as a distinct field did not come into being in America until the critical spirit of the early-twentieth-century jurists forced them for the first time to call into question the fundamentals of the legal order.

  The functional equivalent of late-nineteenth-century American jurisprudence was brought forth by a single question of public policy-codification. And it was the debate over codification of the common law-a debate that produced several hundred books, articles, and pamphlets in the last thirty years of the centurythat provides us with the best overview of the general issues that were provoking a challenge to the old order.

  Codification was a perennial issue in American legal history. After the Revolution, several states codified their criminal laws, throwing off many of the barbarities of the English criminal system.64 But it was only after 1820 that a fullscale movement to codify the common law sprang up in many states.65 Whether the codification movement of the Jacksonian period was really a movement with deep social roots, and whether the "radical codifiers," who wished fundamentally to change the substance of the common law, were really radical have not yet received sufficient study. In any event, by 1848, when the New York legislature adopted the Field Code of Civil Procedure drafted by David Dudley Field, the debate over codification had turned to relatively technical questions of procedure and had become primarily an internal debate within a rapidly growing legal profession.

  Field, however, did not rest content with his triumph in the procedural realm. Between 1857 and 1865, as one of the Code commissioners mandated "to reduce into a written and systematic code, the whole body of the law of the state of New York,"66 he and his colleagues prepared a Penal Code (eventually enacted in 1881 after several rejections),67 a Political Code (which never passed),68 and finally, and most important, a Civil Code containing 2,034 sections dealing with the whole body of common law.64

  The Civil Code, on which most of the controversy over codification turned, was enacted into law four times by the New York Assembly and twice by both houses of the legislature, only to be vetoed by two different governors after intense opposition by the legal profession. Several further unsuccessful attempts to secure enactment of the Code in 1875 and 1884-1886 produced a flurry of professional debate over the nature and function of law.

  Meanwhile, California in 1851 had adopted its own Civil Practice Act, modeled after Field's New York Code and shepherded through the legislature by Field's brother Stephen, soon to be appointed to the U.S. Supreme Court. Finally, in 1872, California enacted a Civil Code, fashioned after the already rejected and much maligned New York Code of David Dudley Field. The Dakota Territory had adopted Field's Civil Code in 1866; Georgia had enacted a code of its own in 186o.

  Unlike the codification movement of fifty years earlier, this attack on the common law finally produced the political results that were widely feared by orthodox jurists. No other subject produced such an outpouring of controversy or as much attention from legal thinkers as the struggle over codification.

  Without closer study, it is difficult to know which of the hundreds of detailed substantive legal changes produced major controversy. Field and his fellow Code commissioners singled out three areas in which the New York Code made substantial changes in the common law-"the rights of married women, the adoption of children, and the assimilation of the laws of real and personal property."70 But they also noted that there were 120 other changes "of less importance, which ought not to be overlooked. 1171

  The enacted California Code was perhaps more radical. For example, it substantially overhauled the state's corporation law, establishing detailed regulations for railroad, insurance, and telegraph companies, as well as for savings and loan associations. Railroad and telegraph rates were regulated, as were the investments by health and accident insurance companies. Savings and loan companies were barred from making loans without full and adequate security, and their officers were prohibited from borrowing or engaging in personal financial transactions with their associations. There were also major departures from the common law in provisions dealing with women's property and contracts, community property, inheritance and succession, contingent remainders, and the abolition of the common law rights of dower and courtesy. Hundreds of other changes in the common law, too detailed to analyze here, threatened to upset existing social and economic arrangements. 72

  New York became the battleground for halting the threatened tide of codification after the Bar Association of the City of New York in 1883 unanimously passed a resolution opposing passage of a Civil Code. James Coolidge Carter, a member of the New York Establishment Bar, was chosen as its leading spokesman, and he successfully led the opposition to what a committee of the Bar Association called "the greatest misfortune which has ever threatened the State of New York."73

  The opponents of codification did not, in general, focus upon the particular details of proposed changes. Instead, they directed their energies to a more general and abstract discussion of the nature and function of law. Through his writings on codification, Carter, in particular, articulated the jurisprudence of American legal orthodoxy at the end of the nineteenth century.

  The codification debate reopened perennial conflicts in American legal thought. From the time of the Revolution, there had been periodic challenges to the abundant power of common law judges to make law. In one way or another, the defenders of the common law system invariably sought to show that judges did not legislate and that common law reasoning was different from political reason ing. Every defense of the common law system was based on some assertion of the objective, apolitical, and scientific character of common law adjudication.

  In this respect, Carter was no different from his orthodox predecessors. "That the judge can not make the law is accepted from the start,"74 he told the American Bar Association in i8go:

  That there is already existing a rule by which the case must be determined is not doubted. Unquestionably the functions of making and declaring the law are here brought into close proximity; but, nevertheless, the distinction is not for a moment lost sight of. It is agreed that the true rule must be somehow found."

  In one form or another, a declaratory theory of the judicial function stood at the center of all orthodox defenses of the common law. For if common law judges did not merely find the law but made it, there was no basis for insisting that this concededly legislative function should be assigned to courts.

  At bottom was a long-standing fear of legislative intrusion into the distribution of wealth and privilege. Codification, Carter argued, would produce "[i]ncessant, frequent, sharp and often ill-conceived changes in the law. . . . The habit of changing the law necessarily tends to destroy that sense of the necessity of stability which is now (although unfortunately diminishing) one of the greatest safeguards for property, business, and liberty."76 Yet there was also a well-established American tradition to which Carter appealed, one that employed the language of popular government for essentially conservative ends. A code system, Carter asserted, was "a characteristic feature in those [countries] which have a despotic origin, or in which despotic power, absolute or qualified, is, or has been, predominant."77 By contrast, a common law system prevailed in "States of popular origin. . . .78

  Nor is this contrast accidental. It arises necessarily from the fundamental difference in the political character of the two classes of States. In free, popular States, the law springs from, and is made by, the people; and as the process of building it up consists in applying, from time to time, to human actions the popular ideal or standard of justice, justice is the only interest consulted in the work. In despotic countries, however, even in those where a legislative body exists, the interests of the reigning dynasty are supreme; and no reigning dynasty could long be maintained in the exercise of anything like absolute power, if the making of the laws and the building up of the
jurisprudence were intrusted, in any form, to the popular will. The sovereign must be permitted at every step to say what shall be the law. He cannot say this by establishing a custom, or by interpreting popular customs. He can say it only by a positive command, and this is statutory law; and when such positive command embraces the whole system of jurisprudence it becomes a Code. The fundamental maxim in the jurisprudence of popular States is, that whatever is in consonance with justice as applied to human affairs, should have the force of law.79

  Thus, Carter shrewdly sought to reconcile opposition to legislation with the democratic spirit. For this purpose, he insisted that the concept of customary.law as an alternative to legislation better fulfilled the ideal of popular sovereignty. Custom stood as a cushion between state and society. As the principal discoverers and expositors of custom, judges, not legislators, were the ultimate representatives of the people.

  For Carter, the common law "consists of rules springing from the social standard of justice, or from the habits and customs from which that standard itself has been derived."80 The task of the judges was to "search to find a rule" from "the habits, customs, business and manners of the people."" Finally, he "tacitly assumed that the sense of justice is the same in all those who are thus engagedthat is to say, that they have a common standard of justice from which they can argue with, and endeavor to persuade, each other. . . ."8Z

  Law, then, or at least the private law "which governs the ordinary private transactions of men with each other . . . ," is identical with custom. "And it is well to keep constantly in mind that this law, being tantamount to the custom enforced by society, is an existing fact, or body of facts, and that courts do not make it, or pretend to make it, but to find and ascertain it, acting upon the true assumption that it already exists."83

  Carter was even moved to the verge of denying that legislation was lawmaking. While he acknowledged that it was "not worth while to dispute the correctness of the common phraseology which ascribes to the legislature the office of making law," he did argue that "the deeper and more philosophical view" would make legislatures appear to be more like courts, since the proper legislative function was simply that "of affixing the public mark and authentication upon the customs and rules already existing, or struggling into existence, in the habits of the people."84 "It is important to firmly grasp the truth that the work of declaring or making law, whether committed to the hands of a judge, a legislature or a codifier, is substantially the same,"85 Carter concluded.

  "[L]egislation should never attempt to do for society that which society can do, and is constantly doing, for itself,"86 Carter wrote. Since the creation of custom "is the unconscious work of society . . . the passage of a law commanding things which have no foundation in existing custom would only endeavor to create custom, and would necessarily be futile."87

  Thus, law was not the creature of the state but of society. "The law is a department of sociology,"" Carter declared. It was

  not a body of commands imposed upon society from without. . . . It exists at all times as one of the elements of society springing directly from habit and custom. It is therefore the unconscious creation of society, or in other words, a growth. For the most part it needs no interpreter or vindicator. The members of society are familiar with its customs and follow them; and in following custom they follow the law.

  From this, Carter concluded that courts and legislatures were needed only "for the exceptional instances"90 where customs were doubtful or in conflict. But ordinary officials simply performed the self-executing function of "declaring what actually is."91 "It is the unconscious resolve of society that all its members shall act as the great majority act."9Z

  Carter's worship of custom was part of a more general system of Social Darwinism that came to exercise sway over American thought in the late nineteenth century. William Graham Sumner, the dominant social thinker of the age, had borrowed Herbert Spencer's evolutionary philosophy and had used social determinism "with great effect in his fight against reformers. . . ."93 Sumner, Richard Hofstader observed, insisted that "society, the product of centuries of gradual evolution, cannot be quickly refashioned by legislation."9{ As Sumner wrote:

  The great stream of time and earthly things will sweep on just the same in spite of us. . . . Every one of us is a child of his age and cannot get out of it. He is in the stream and is swept along with it. All his science and philosophy come to him out of it. Therefore the tide will not be changed by us. It will swallow up both us and our experiments. . . . That is why it is the greatest folly of which a man can be capable to sit down with a slate and pencil to plan out a new social world.95

  For Carter, evolutionary determinism was equally paramount. "Whatever is necessary in the scheme of the universe must be right, and society therefore is right and necessary and right."96

  Custom as a Mediator Between Legislative Supremacy and Natural Rights Individualism

  This invocation of custom as a standard of justice prior to law was widespread in late-nineteenth-century American social thought. In legal as in social thought, the deification of custom mediated a series of major intellectual and political tensions and contradictions. In particular, custom served both to defeat the democratic impulse for legislative supremacy and, at the same time, to avoid the potential anarchy of a common law based solely on individual natural rights.

  At one end of the legal spectrum was continental positivism, which had flourished since the French Revolution and the Napoleonic Code.97 It invoked popular sovereignty and legislative supremacy as the legitimate foundations of all lawmaking. In one way or another, it acknowledged the legitimacy and necessity of social coercion to maintain order and justice. Bentham, the arch-foe of the common law power of judges, and John Austin were the major English exponents of this position. In America, Bentham had become the intellectual fountainhead of the codification movement.98

  Writers as distinguished as Sir Henry Maine99 and as pedestrian as James Coolidge Carter deified custom largely in order to deny the positivism of Bentham, Austin, and the Continental jurists. In nineteenth-century America, customary law was employed as a conservative intellectual construct established in order to neutralize or delegitimize legislative authority and to defend the slow process of common law decision making under the guidance of judges.

  At the opposite pole from legislative positivism was the highly individualistic natural rights philosophy that had reached its pinnacle at the time of the American Revolution. It emphasized the sovereignty of the individual will and the prepolitical character of the right to property. As applied to contract law, for example, an emphasis on natural rights led to an insistence on a subjective interpretation in order to find the real will of the parties.

  Amid the widespread fear of social disintegration in the late nineteenth century, conservative social thinkers wished to deny highly individualistic and utopian natural rights modes of thought as much as they feared the majoritarian power of the legislature. Carter, for example, observed that if each individual were to pursue that conduct

  which he deemed to be intrinsically right in itself . . . there would be every variety of difference of opinion, and consequently, every variety of action. . . . It is therefore manifest that some rule other than the individual sense of right should be adopted for the government of conduct. . . . The notion that each individual should be left to follow the dictates of his own conscience must be at once abandoned. 100

  Having thus acknowledged that if obedience to individual conscience were the norm "disputes and collisions . . . would mark all social intercourse," 101 Carter simultaneously sought to deny that legislative regulation of conflicting interests was the inevitable solution.

  It was here that custom served its most essential late-nineteenth-century function of mediating between an anarchically individualist natural rights philosophy and a potentially coercive legislative sovereign. Customs, Carter wrote,

  being common modes of action, are the unerring evidence of common th
ought and belief, and as they are the joint product of the thoughts of all, each one has his own share in forming them. In the enforcement of a rule thus formed no one can complain, for it is the only rule which can be framed which gives equal expression to the voice of each. It restrains only so far as all agree that restraint is necessary.102

  Custom, according to Carter, was no less than consent. It was the means by which he and many other late-nineteenth-century social thinkers legitimated social coercion without having to acknowledge that it was coercive. It satisfied the conservative desire for order and stability while perpetuating the idea that each person nevertheless had consented. Though Carter constantly emphasized that resort to individual conscience would produce inevitable conflict, custom allowed him to dissolve all conflict by identifying customary rules with "the sense of justice" and then to "tacitly assum[e] that the sense of justice is the same" 103 in all persons.

  I have focused at length on Carter's jurisprudence primarily because it represents in a clear and unsubtle manner the intellectual paradigm for virtually all orthodox late-nineteenth-century legal theory. On the one hand, custom was employed for the purpose of overthrowing post-revolutionary natural rights individu alism, which represented an anarchic threat to order. On the other hand, custom was used in order to deny the legitimacy or necessity of most legislative and social coercion.

  Custom thus represented a Rorschach blot onto which conservative social thinkers could project their fantasies of a naturally harmonious society free from the twin dangers of anarchy and coercion, yet capable of organic change and growth.

  It is only with this background in mind that seemingly irreconcilable contradictions in the thought of Oliver Wendell Holmes, Jr., can be understood.